1 CRIMINAL LAW - RKL Fall 1999 1. Introduction and general issues 1. Objects of criminal law: 1. retribution punish offender 2. general and specific deterrence 3. rehabilitation (not in favor today) 4. Security of possessions and safety 5. Maintaining legitimacy of law and imposition of order 2. Philosophical issues -- justifications: 1. freedom and law/order are in conflict w/ each other 2. law and organized gov exist to protect freedom (Hobbs) t 3. Feinberg: Vindication of the law: must punish those who violate law so that citizens believe that the law really means what it says. Crim. law should be used to prohibit conduct that harms others. 4. Kant: Punish conduct that is harmful to others without any concept of why (don t concern yourself w/ so-called benefits to society punishment is meant to address a specific individual behavior) s 5. Paul Butler Supp. p. 7 6. Need to consider society capacity to obey. s 7. Constitutional safeguards: 1. Beyond Reasonable Doubt (relies on moral certainty of the jury) 2. BOP (Burden of Proof) on government. Does defense have a Burden of Production on Defenses No. But they are often compelled to do this. ? 3. Due Process clause: (1) Fair Notice: D must have advance notice what the charge is (2) Specificity: Law must be specific so person can understand in advance what constitutes a crime; Indictment must contain specific description of crime 4. See Shaw: dissent remarks that no specific law exists outlawing publishing directories for prostitutes; judges cannot invent without specificity to common law or statute. 3. Sentencing considerations Who determines? What will deter? 1. judges consider/ justify sentence for each particular offender 2. legislature determines which offenses receive more/less punishment 3. BRD: jury say they feel morally convinced by the evidence that the D was guilty. 4. in Va. juries can pick ranges of sentences. 5. Sentencing options: Imprisonment; probation/parole; fine; creative sentencing 1. See: Federal Sentencing Guidelines (prevents arbitrariness) (1) In mid-80's statistics showed that judges were the largest factor in
2 determining severity of sentence. So, congress came up with the sentencing table. Because of this, most people go to prisons. Ignores uniqueness of each defendant. 6. Notes: 1. Murderers have the lowest recidivism rate 2. People convicted of fraud have high rates of recidivism 7. U.S. Bergman (SDNY 1976) Rabbi, tax fraud, light sentence b/c recidivism unlikely, but punished b/c general deterrence and lesser penalty would diminish seriousness of crime. 1. Guiding principles of sentencing: Imprisonment is punishment and no one should be sent to prison for rehabilitation. (1) Court must consider: (1) is imprisonment to serve specific deterrence or general deterrence? (2) that the penalty is severe enough; an inappropriately weak penalty would, according to Model Penal Code, 7.01(1)(c), depreciate the seriousness of the defendant crime. s 8. Jean Harris killed abusive husband, clemency pleaded 9. Leona Helmsely not contrite, severe penalty for tax fraud.
4. Two components: ACT and MENTAL STATE (MENS REA) 1. Manifest Criminality: Act; commission of crime can be objectively discernable 2. Subjective Criminality: Prove the required intent (mens rea), and one may be an act manifesting danger. This does not include reckless crimes. 3. Queen v. Dudley & Stephen 1884 p. 9. CL case. Men on lifeboat kill and eat one guy who didn consent to the drawing of lots. Raise t Necessitydefense, claiming killing done to prevent greater evil (See MPC 3.02). [Victim consent s is no defense.] 1. Rule: Under CL, Necessity never a defense to homicide guilty of murder (sentence reduced to 6 months) 2. MPC: if no reasonable person has capacity to resist conduct then ND should be o.k. 5. Supreme court examines elements 1. In re Winship U.S. 1970. Boy convicted in juvenile court of larceny for stealing purse. Case deals with standard of proof. Juvenile court in NY held only a preponderance was needed. Supreme Court overruled b/c is a criminal charge. Old ideas of juvenile rehabilitation no longer really apply to Juvenile courts: more closely resemble adult courts, therefor same DUE PROCESS should be upheld for juvenile defendants. Conviction reversed.
3 2. Jones v. U.S. 1999. Carjacking. D accomplice hit V with a gun. Convicted and s sentenced according to enhanced sentencing provisions included in the statute which described SBH/death. The indictment did not include such provisions. 1. Rule: When a fact of the crime changes the range of sentencing, then it should be considered an element and must be 1) charged in the indictment; 2) must be proven BRD; 3) must be decided by jury. 2. Holding: Reversed and remanded 3. Decision essentially reversed Almendarez-Torres (had previously been convicted of felony prior to deportation) and Monge, which held that prior convictions are merely sentencing factors and not elements of the offense. 2. Culpability: Act + Intent + Result = Crime - Defenses 1. ACTUS REUS Thoughts not enough 1. Rationale: W/o act, is diff. to distinguish a fixed intent from a daydream 1. Criminal law shouldn be so broadly defined to reach those who entertain t criminal schemes but never let their thoughts govern their conduct. 2. Statute must describe the act clearly. Childs (Handle-popping) 3. Committing noncriminal act with criminal intent is not a crime legally impossible. 1. Childs v. State of Nevada: Rule: Terms of offense must be defined. An overt act, or some open evidence of an intended crime, is necessary to demonstrate depravity of the will. If NV supreme court hadn overruled, the indefinite t nature of the crime could have lead to convictions of innocent grannies with epilepsy. 4. Voluntary Act (no culpability if involuntary) 1. Jury decides if acts involuntary 2. MPC 2.01(2): Exceptions (Reflexive; Convulsive, Unconscious, Asleep, Hypnosis) 3. 5. Omission as Act Legal Duty to act when: (1) Statute compels (2) Contract (3) Special Relationship (4) D conduct created the peril s (5) Voluntary Assumption of Care (1) Jones Woman took care of friend kid. Convicted of Invol. s Manslaughter for failure to perform legal duty to care. 2. Good samaritan laws: generally not upheld (no legal basis to aid when no special relationship) 6. Possession as Act Considered voluntary. Awareness + Dominion/Control over
4 controlled substance 1. Elements: (1) Awareness of possession and (2) Possession (Dominion/Control) (1) Constructive Possession Need not be in direct possession. 1) Wheeler (Lady in Apt.; Toilet Flush) Guilty; Not in physical possession, but exercised control. Inference she was connected to heroin. 2) Ireland (Guy wife kept Pot in trailer home) For purposes of s constructive possession, knowledge alone is not possession (nothing tied him to the criminal act). Exclusive control does not exclude joint control and therefor joint possession jury needs to have it explained that CP is allowable, but not a necessary inference. 7. Status Crimes 1. General (1) Being a certain way is criminal (Doesn require any specific act) t (2) Unconstitutional (Robinson v. CA.: LAPD officer testified that D was drug addict; convicted of being addicted to drugs; is cruel and unusual punishment (unconstit.). Can criminalize chronic conditions (person t could be continuously guilty absent any antisocial behavior. 2. Homelessness/Drug addicts: Not Crimes b/c involuntary (1) Pottinger v. Miami Court held unconstitutional to arrest homeless people for doing things that are inseparable from involuntary homeless status. but see: (1) Joyce v. SF: Plaintiffs trying to get injunction to prevent SF from implementing program that would enforce laws aimed at homeless people (citing Pottinger). In denying this, court denies that homelessness can properly be called a status(which is not changeable) and said it was more a condition(which is changeable) and therefor the city had a right. 3. Public Drinking: IS A CRIME Is an act for PP reasons. (1) Powell v. Texas. Supreme court minority: argued that drunkenness was a disease of alcoholism, should not be considered criminal. Majority: no way, this would open door for compulsion defense to other crazies like pedophiles, pyromaniacs, etc. (2) MPC 250.5 Public drunkenness: is an offense to the degree that it endangers someone else. 4. Loitering (1) loitering ordinance unconstitutionally vague (Papachristou v. Jascksonville p. 192) (2) MPC 250.6 says loitering a violation if D acts in unusual manner that
5 would justify alarm and D does not ID himself and offer explanation and takes flight upon appearance of police. (Supreme Ct. says can t criminalize people who don carry ID) t 5. Lambert v. CA U.S. 1957 Convicted Felon must register within 5 days of remaining in LA. This is a failure to act, where an act must be done according to a statute. Statute not clear because seemingly innocent conduct criminal. Lambert proves that there was no reasonable way she would have known of requirement: not published. Due process violated if there is no notification of registration requirement. Note: generally, not possible to invoke due process defense in for mistake of law. There was no proof that a person should know that registering was the law. (1) See Freed (1971): Failure to register possession of hand-grenades is against the law. Comes out completely opposite (should know) 3. MENS REA Don punish t innocentcriminal behavior 1. General: 1. Most modern crimes require an act and a state of mind 2. Basic Mens rea: 1. May sometimes be referred by the act 2. intent generally required unless specified otherwise by law 3. need to prove requisite level of intent for all material elements or cannot convict 4. can have different levels of intent for each element 3. Pro/Con arguments for requiring mens rea 1. Pro: (1) Helps define kinds of behavior we wish to prevent help divide b/t culpable and innocent behavior (2) Argue: intentional crimes are the only deterrable crimes 2. Con: (1) purpose of crim. law should be to protect social/public interest rather than to discourage immoral behavior, and therefore proof of mental state shouldn be required to convict t 2. Motive v. Intent 1. motive is reason why D commits act has to do with desire 2. intent is mental state when D performs act has to do with will 3. law prohibits only bad act, not bad motive 4. motive by itself not enough to be a defense, but may be a mitigating circumstance 3. Common Law VAGUE 1. General Intent Actor intends to commit conduct which has been made criminal (General awareness; easier to punish) BATTERY
6 1. People v. Hood (p. 203) Assault declared a general intent crime (thus, things like
drunkenness cannot be used as a defense)
2. Specific Intent With intent to do the act in a criminal way; = general intent + extra special mental element (intent to commit some further act; special motive; awareness of special circumstances) 1. Murder, larceny, Burglary 2. (More blameworthy; can be deterred) 3. Nearly all modern statutory crimes require a specific mental state, so CL meaning of specificno longer helpful for distinguishing crimes 4. Can affect sentencing: Example: hate crimes, when there a reason to choose s one victim over another: Extra mental element = specific intent. Mithcell p. 204: U.S. upheld statute that enhanced sentence if D intentionally selected V b/c of race (1) Certain defenses available: intoxication, insanity, duress, necessity defense (heat of passion is a mitigating factor) 3. Strict Liability No mens Rea needed because so bad. Certain defenses (e.g., Mistake of Fact) N/A. Essentially, these are manifest negligencestatutes 4. Transformed Intent: Regina v. Faulkner, Intended to steal rum, start fire on ship. Not culpable. 5. Transferred Intent: Can transfer intent: aim at A and hit B. Culpable. 6. Criticisms of Specific/general distinction: 1. hard to apply and is linguistic distinction only 7. MPC (see below) and 30 states do not use these distinctions except: 1. When considering certain defenses (1) When D raises mistake of fact or intoxication defense, court will consider crimes as either general or specific intent. 8. Application 1. Peery MN 1947. p. 199. Mental state the whole ball game. Stripper by window. Convicted of indecent exposure. Was it willful or intentionally lewd? Statute vague on what mens rea needed; ct. interprets as willful.(ie., some sort of specific intent) Here, behavior was just careless, or reckless so court reversed. (1) Legislator of course could change this and so that reckless or negligent nudeness would qualify as a crime under the statute. (2) After court defines required mens rea, jury must decide the facts. Mens rea is an element. Requires remand for new trial. Here, they decided that the evidence was insufficient to convict, so not remanded. 4. Defenses at common law 1. Mistake of fact Facts are undisputed, but D claiming his mistake negates the required mens rea. (Innocent mistake v. Culpable mistake) 1. Jury gets to decide these. 2. Distinguished mistakes by distinguishing crimes: See Navarro (p. 216):
7 Stealing a 2 x 4. (1) General Intent: (Less defenses)(Conduct alone is wrong) Mistake must be reasonable (sincere; most people would not perceive they were acting criminally); philosophy: crime so bad, don leave many defenses. t Example: Battery is inherently bad. (2) Specific Intent: (More defenses) Unreasonable (sincere) mistake can be used as a defense (crime is not as obvious to the average person); crime not so bad, leave more defenses. Example: Depositing a check appears legal to the average person, but an unreasonable mistake may negate any intent to embezzle the money. (1) Gordon v. State. 1873: Boy in Alabama thought he was 21 based on information from family members. Conviction overturned b/c it was a reasonable (and honest) mistake of fact that negated knowledge element of fraudulent voting. (2) People v. Rypinski D unloaded 3 rounds (claimed that all it ever s contained) b/f approached V. Reckless assault conviction reversed b/c jury should have been instructed on mistake of fact (here, even though appears unreasonable). (3) People v. Navarro Stealing wood from construction site. Though abandoned or had owner permission. Tr. ct. improperly instructed s jury that D belief must be honest and reasonable. App. ct. reversed: s even unreasonable mistake may negate mens rea for specific intent crime. 3. Modern- See MPC below. 2. Mistake of law. Note how this overlaps with mistake of fact. 1. Generally: Ignorance of law is no excuse (1) Exceptions: (1) unpublished law (2) Reasonable reliance on statute that is later determined to be invalid (Godwin) (3) reasonable reliance on court decision (Ostrosky p. 221) (4) reasonable reliance on public official in position to interpret the relevant statute (Ferguson CA) 1) Comm. v. Twitchell supp. p. 21: Christian scientist case: court reversed conviction of invol. manslaughter on grounds the parents should have been allowed to raise the affirmative defense that they had reasonably relied on an official interpretation 2) Identity of public official can matter: Achter and Bsharah, supp. p. 21 (also, Twitchell: official was att. general) 2. Most jrxs. do not allow MoL defense when D relied on legal advice (Vineburg CA)
8 (1) Some do allow if reliance reasonable and att. knew all facts/cirumstances 3. NJ: Much broader (p. 222) 4. Mistake of law b/c of reliance on higher authority must be reasonable (Barker) [Can ignore this case] 5. Recall due process defense of Lambert: violation occurred without accompaniment of any activity; no notice; no proof of knowledge; such a regulation is against the due process clause of 14th A. (1) Freed Companion case: failed to register hand grenades. Unreasonable to not be aware and no due process violation b/c of inherent danger. 6. People v. Wendt. Guy tries to claim he thought he was exempt from having to pay taxes. Mistake is a defense if it negatives the existence of the mental state proscribed by the statute w/r/t the element of the offense. Guilty: he made a mistake of law: Would not have made such a mistake if he exercised due diligence in learning the law. Note: MPC says must willfully fail to file a return. Willfully means knowingly (this means practically certain). Applies statutory language rigidly. SEE BOOK FOR DETAILS 7. Regina v. Smith (p. 219) Smith made improvements to his rental apartment. When he left, ripped out what he built. Charged with destruction of another s property. Doesn know rule that says anything you build in a rental unit t becomes the property of the landlord. (1) Mistake of law or mistake of fact? (1) He mistook who property this was: mistake of fact. s (2) Did not mistake whether or not he could legally remove his improvements. (2) Court ruled: mistake of law could be a defense if it was reasonable that D was unaware of the law. 8. Weiss NY p. 220. D allowed to present defense of mistake of law b/c he was officially deputized and thus acting lawfully when he acted 9. Cheek D did not pay tax b/c D had a reasonable belief that he was not in a legally defined category; No conviction 10. Ratzlof D cannot be guilty of money laundering by structure if he did not know that structuring was illegal (CHECK BOOK) 3. Intoxication 1. fact that person intoxicated at time of crime does not nec. negate intent (recall that much criminal activity involves alcohol to allow this defense broadly would seriously hamper law enforcement) (1) Williams. p. 236. This is a stick. (had admittedly drunk heavily and taken barbiturates and LSD). Robbery upheld even though D intoxicated b/c there is sufficient proof that he was not so drunk that he couldn form t spec. intent to rob the bank.
9 (2) Montana v. Egelhoff supp. p. 24: Supreme Court: upheld constitutionality of MT statute that precluded consideration of D intoxication s 2. for specific intent: (1) cts. split on whether vol. intoxication can be a defense to specific intent crime if it negates intent (1) Crittle p. 239 D allowed to present defense b/c was drunk when committed the robbery and then returned the stolen goods (2) Lee p. 239. Court did not allow defense to be excuse for specific intent 3. for general intent: Almost unanimously rejected as a defense. (1) Hood p. 240: assault a general intent crime to which D could not raise intoxication defense 4. Most crimes are committed by drunk/drug users. 5. Involuntary intoxication Universally recognized as a valid defense if it negates the mens rea required for the crime. 6. Alcoholism and Narcotics addict. Status Crime. Neither may be used as the basis for a defense of involuntary intoxication. Doesn comport well with a t wide-held belief that drug addiction is a disease and thus involuntary. 5. MPC 2.02 Levels of Culpability A person acts purposely with respect to a material element of an offense when: 1. Purposely: if the element involves the nature of his conduct or a result thereof, it is his conscious objective to engage in that conduct or to cause such result; D is aware of existence of circumstances or he believes/hopes they exist. 2. Knowingly: D is practically certain that his conduct will cause the result of which he is aware 1. deliberate ignorance is knowledge: Ostrich defense (1) knowledge sometimes proven by showing that D is: (1) aware of high probability that a fact exists, but 1) deliberately avoid finding out in order to avoid criminal liability 2) Jewell (9th Cir) D knows that car has secret compartment and drives car across border w/ drugs inside. Convicted of possession of drugs wilful ignorance is no defense; Dissent: Knowledge required for guilt, not proven. (2) criticism: leads to convictions where knowledge is required by statute, but not actually proven. 2. MPC approach to ostrich cases (2.02(7)) (1) Knowledge can be established if (1) D is aware of high probability of existence of fact (2) unless D actually believes it does not exist 3. Recklessly: D consciously disregards a substantial and unjustifiable risk that the material element exists or will result from his conduct. The risk must be of such a nature and degree that, considering the nature and purpose of the actor conduct s
10 and the circ. known to him, its disregard involves a gross deviation from the standard of conduct that a law abiding person would observe in the actor s situation. Negligently When he should be aware of a substantial and unjustifiable risk that the material element exists or will result from his conduct. Risk must be of such a nature and degree..... (as for recklessly) 1. Some criticize criminalizing negligent conduct b/c it will not deter b/c D is not aware of his mistake. Distinctions b/t recklessness and negligence 1. both requires that D create an unreasonable risk that is a gross deviation of standard care 2. recklessness requires that actor be aware of and consciously disregard risk, whereas negl. exists even when actor is not actually aware of risk 3. Factors to consider whether conduct is reckless (1) to what extent is D aware of the risk (2) does D disregard of risk involve a gross deviation from standard of s conduct that a law-abiding person would have observed in actor s situation. Distinguishing criminal negligence from civil negligence 1. difference is one of degree (1) Beckles (NY p. 212) no criminally negligent homicide where D strikes victim w/ hand, V hits floor and later dies. Criminal negligence requires proof that the risk is substantial and unjustifiable. (2) Warden (p. 213) D convicted of criminally negligent homicide where D negligent treatment is deemed legal cause of V death. s s 2. factors to determine if conduct is criminally negligent: (1) D role in creating risk s (2) the proximity of the ultimate harm (3) extent to which immediate harm was predictable and apparent 3. Standard of proof: Criminal (BRD); Civil (Preponderance) Problem of poorly defined statutory mens rea: whether applies to all elements 1. How to solve: (1) do the mens rea not fit the attendant circumstances (2) (3) Default mens rea is recklessly (4) If law specifies for certain levels, then all higher levels qualify (5) Requirement of knowledge satisfied by Knowledge of High Probability
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8. Application 1. U.S. v. Villegas p. 205. D placed blood vials w/ hepatitis contamination in bulkhead. Taken by current to staten island where picked up by kids. (1) Statute unclear because the standard selected by congress is knowingly which they specifically define as less than substantially certain Judge .
11 looks to MPC to figure out what legislator meant. Looks to Practically Certain(MPC for future results); some states use standard of High Probability(which is also in MPC 2.02, note 7; only applies to existing facts). Which requires more knowledge: sounds like the former. (1) Therefore: D must be practically certain/high probability (MPC). To violate statute: he must be aware that its highly probable that such a result would be caused by his conduct. Not guilty b/c harsher sentencing requires knowledge of imminent harm 9. Defenses under MPC 2.04: Ignorance or Mistake 1. General (1) is a defense if negatives the purpose, knowledge, belief, recklessness or negligence required (2) not a defense if D would have been guilty of another offense had situation been as he supposed. (3) Doesn distinguish b/t law and fact. Not concerned with kind of mistake t or crime, per se. (4) Concerned with actor mental state not circumstances: Conduct is the s same in Negligent and Reckless behavior; what distinguished is mental s state (perception of risk = reckless; no perception of risk = negligent) 2. Mistake of law: 2.04(3) (Mirrors common Law)Acceptable if: (1) law unpublished (2) reasonable reliance on official statement of law contained in: (1) statute (2) judicial decision (3) administrative order/grant of permission (4) public official in a position to interpret the applicable law (3) Note: Bad advice from an attorney (eg. you undertake an illegal activity having been told it is legal by your attorney), not a defense. (Federal law does recognize this defense) 3. Intoxication 2.08(1): Vol. intoxication not a defense unless, negatives an it element of the offense.However, it only negates purpose or knowledge, not recklessness. (1) People v. Rypinski: Charged with reckless assault after shooting someone in leg, mistakingly thinking that the gun was empty. Appealed because jury failed to give instructions that his mistake of fact was a defense if it negated the requisite mens rea (recklessness) (ignoring risk). D claims he had no appreciation of risk. Standard of care is never point a gun. Fact issue to be decided by jury. In CL you can be reckless even without appreciating risk. 4. States that adopt MPC still use Spec. + Gen. intent when evaluating appropriateness of intoxication and mistake of fact defenses
12 4. PUBLIC WELFARE CRIMES, STRICT LIABILITY, VICARIOUS LIABILITY, AND CORPORATE LIABILITY 1. Strict Liability: Require no mens rea for public welfare crimes; do not allow a defense for even a reasonablemistake of fact. Basically these are negligence statutes. 1. Staples v. United States 1994 U.S. supp. p. 25. D was felon; possessed an unregistered machine gun Semi-automatic are legal; his modified gun was a . s machine gun which are illegal. D says gov (ATF) modified the gun. [READ t THIS] 2. Commonwealth v. Koczwara. PA 1959 Serving liquor to a minor is a strict liability crime. No mens rea needed. D not even present (no act, no intent) -vicarious. Court sustained fine, but held prison term (criminal aspect) for vicarious offense was violation of due process. Personal causation is required for jail sentence. 1. Court interprets the legislator intent in creating the Liquor Code: in so s giving license to certain individuals to sell liquor, it eliminated mens rea requir. and placed high degree of responsibility on license holder that neither he nor any of his employees commit prohibited acts. 2. If this were an MPC case: permits finer distinction between mental states than here, where judges stuck with either Knowledge or no Knowledge. Mens rea would depend on his knowing that there was a risk that minors could be served and that this risk substantial and unjustifiable. MPC does have strict liability violationswhich do not carry criminal convictions, but only monetary punishments. 3. US v. X-Citement Video supp. Child pornography: need knowledge that performers were underage to be guilty of child pornography. 4. Posters N things, Ltd v. US Interprets statute criminalizing drug paraphernalia as requiring proof that D know they would be used with illegal drugs. 2. Pubic Welfare Crimes Close relationship to strict liability crimes. Related to public safety and health. Penalties are modest, so few question the dispensing of the mens rea requirement. 3. Model Penal Code Position: Opposes strict liability crimes, but allows for strict liability violations(where no stigma of criminal conviction or prison sentence imposed). If convicted, reduce sentence to a violation . 4. Bigamy and Statutory Rape: Generally considered strict liability; even so, they lead to imprisonment and are not considered public welfare crimes. Reasonable mistake of fact does not excuse defendant. See Staley v. State (p. 250). VERY UNREASONABLE. Courts can be wrong. Reasonable reliance on an official is
13 recognized as a defense; Reasonable mistake of fact is a defense. This is probably a mistake of law. 5. Vicarious liability: Relatively rare. Dispenses with mens rea and the voluntary act of the employer. Well-established in tort law. Concept of respondeat superior imposes tort liability on employers for torts committed by their employees while acting within the scope of their employment. 6. Distinguishing V. L. from Accomplice Liability D act of aiding or encouraging s the principle. Distinguished also from Pinkerton doctrine for crimes committed by one co-conspirators. s 7. Corporate Liability In what circumstances may an employee acts be attributed to s the corporation? 1. United States v. Park Criminal conviction of president of retail food chain for selling food contaminated by rodents in company warehouse. D (someone high s in management chain) could be convicted so long as he had a responsible relation to a public dangerand failed to prevent it. Reasonable Share concept imports a measure of blameworthiness. D can claim that he was powerlessto prevent or correct the violation. 2. State v. Adjustment Dept.. Only if an agent acts were authorized, requested or s commanded by another corporate agent having responsibility for formation of corporate policy, may the corporation be held liable for the criminal activity of that agent. 3. Model Penal Code position: Less strict because it deems the deterrent effect of s corporate liability rather weak. If an agent will already be held personally liable, what deterrent effect does corporate liability have. Concedes, however, that economic pressures within corporate body may tempt individuals to hazard personal liability for the sake of company gain.See also Saltzburg s Argument; Sears and Exxon
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15 5.
HOMICIDE
Basic, old, penalty driven (punishable by death) Only crime where V can testify. Thus, view of t V is distorted by testimony of D. Juries allowed to make inferences; generally its a question of degree of culpability (diff. b/t 1st and 2nd degree); causation; hastening. Intentional Malice 1st Degree Premedetation 2nd Degree (No Premed.) + (FM) Vol. Mansl (Heat of passion) Unintentional 2d Degree; Grossly reckless; Depraved /malignant heart Invol. Mansl. (negl., not grossly reckless) Below this is civil liability
W/O Malice
1. General 1. Intentional: 1st and 2nd degree distinguished by premeditation 2. Voluntary Manslaughter: Heat of passion crimes (Carroll; Anderson; Maher; Thornton) 3. Unintentional Homicide: 2nd degree: Depraved Heart/Extreme Indifference 4. Involuntary manslaughter: Criminal negligence; recklessness (Malone; Berry; Welansley; Feinberg) 5. Felony murder: (When someone dies during the commission of a felony); Common law rule holds all people involved guilty; usually used when first degree murder not possible. This is a high degree of conviction. 6. Policy Issues - Aaron; Crump article; Individual Limitations - Wesson; Smith; Washington. 7. Penalty structures: Often very vague, often overlap. 1. Early CL:Murder: malice aforethought Capital Crime; Felonious homicide : (manslaughter): no malic aforethought Clergyable : (1) Malice aforethought Traditionally applied to underlying motive, and not proximate intent of the actor. Courts used the fiction of implied malice to enlarge the meaning and, thus, the boundaries of murder. 8. Pennsylvania 1. Murder (1) 1st degree murder: Intentional killing ( willful, deliberate, premeditated ) Penalty: Death or life imprisonment (2) 2nd degree murder: Felony murder (No death penalty) (3) 3rd Degree (in RKL box for 2nd): Any other kind of murder (poorly s
16 defined) 2. Vol. manslaughter Without lawful justification; acting under a sudden and intense passion. 3. Invol. Manslaughter Reckless or grossly negligent homicide 9. California 1. Murder Unlawful killing of human being or fetus (not abortion) with malice (express - intent vs. implied - not provoked, malignant heart); doesn define t provocation (1) 1st degree: Willful, deliberate, premeditated + Felony Murder; Penalty: Death or life imprisonment (2) 2nd degree: All others (No elements listed) Must be, still, unlawful killing w/ malice (can be express or malignant heart); Can be nonpremeditated intentional and unintentional). Penalty: 15 years to life. 2. Gross vehicular manslaughter while intoxicated Worse than regular manslaughter. Unlawful killing without malice aforethought. . . the and killing was either the proximate result of the commission of an unlawful act, not amounting to a felony, and with gross negligence, or the proximate result of the commission of a lawful act which might produce death, in an unlawful manner, and with gross negligence. 3. Manslaughter; vol. invol., vehicular manslaughter: No malice: (1) Voluntary: upon a sudden quarrel or heat of passion (note perspective) (2) Involuntary: Negligent - performing an act w/o due caution and circumspection (3) Vehicular: While committing an unlawful act, not amounting to a felony, without gross negligence. 10. New York (has tried to adopt much of MPC - not all; note that it starts at the easiest -- below is in reverse order) 1. Murder in the 1st degree Intent to cause harm to: 1) Cop; 2) Prison guard; or, 3) D in jail at time of murder. Must be over 18; Penalty: 15 to life (eligible for death now) 2. 2nd degree 1) Any intentional killing (they abandoned premeditation as did MPC; includes PA 1st and 3rd degree categories); with reasonable s provocation (AMBIGUITY!) Penalty: 15 to life (now eligible for death); 2) Gross or Reckless conduct; 3) List of felonies; 4) Felony child abuse murder. 3. Manslaughter 1st degree (1) Intent to cause serious physical injury (simple recklessness) or (2) intent to cause death but acting under EED (depraved reck.) 4. Manslaughter 2nd degree Reckless (appreciate risk) killing (no intent needed) 5. Vehicular manslaughter (1) 1st degree while licence revoked (knew or should have known revoked) (2) 2nd degree negligent homicide standard
17 6. Criminally negligent homicide (Is an MPC innovation). Unconscious recklessness (diff. from other states - distinguishes between reckless and grossly negligent, as under PA) 11. MPC Inherently ambiguous (Give juries freedom to find a reasonable reason for mitigation - must consider, to some extent, D point of view) s 1. Murder No degrees; Purposeful, knowingly, recklessly. Penalty range the same for all; Includes felony murder 2. Manslaughter Reckless, or under EED. Must be reasonable explanation or excuse as determined from the viewpoint of a person in the actor situation s under the circumstances as he believes them to be. 3. Negligent homicide 4. Criminally negligent homicide 5. Model Penal Code 210.2 Comment at 13-16 Malice aforethought became an arbitrary symbol judges attributed to many different mental states that supported liability for murder. Four mental states were covered by this term: 1)Intent to kill; 2)intent to cause grievous bodily harm; 3)depraved heart murder (extreme recklessness); 4) intent to commit a felony. Most of U.S. adopted these restrictive categories. Pennsylvania, 1794, instituted a division of murders into various degrees. Eventually this adopted by all states.
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19 2. INTENTIONAL HOMICIDE 1. Distinguishing 1st degree and unintentional murder: intent and premeditation 1. Commonwealth v. Carroll. PA 1963. p. 267. Instantaneous premeditation (1) Loaded .22 on windowsill. D plead guilty to murdering wife after 5 minutes thought following heated argument that related to another job assignment out of town. Trial w/o jury. Guilty of 1st degree murder. Ct. affirmed: appreciable amount of time to fulfill premeditation requirement. Jury must find premeditation. Common law - premeditation can occur in an instant - is a harsh rule. This allows jury to allow for mercy. 2. Requiring Cool Thought: Some courts disagree w/ Carroll and require that impulsive killings can only be considered premeditative if there was a period of cool thoughtduring which time D could have given second thought to his actions. 1. People v. Morrin p. 271 Killing that is done a sudden impulse or that occurred during an argument whose nature would not permit cool and orderly reflection is not premeditated. 2. People v. Caruso p. 272 No cool thought (1) Man killed doctor who he believed failed to provide adequate treatment to son who died. No plan to kill was evidenced. Attack that caused death was the instant effect of impulse . 3. Requiring Appreciable Amount of time: Many courts follow Carroll and seek to prove that there was an appreciable amount of time that created premeditation. Sometimes, an elapsed time of only seconds between the initial first thought and act of killing may be sufficient. 1. Bullock v. U.S. DC 1941. p. 273 there is nothing deliberate and premeditated about a killing which is done within a second or two after accused first thinks of doing it (1) a newer case (Watson DC 1985) says that appreciable time may be as brief as few seconds. See also State v. Schrader (p. 271) where only an instant was required for premeditation. 4. Evaluation of Alternatives: Always deliberate if there is choice. Distinction is obscure. 5. People v. Anderson. CA p. 274 D-Anderson lived with V mother for 8 mo. s prior to murder. V = 10 yr-old daughter. During previous two days before the murder, D drank heavily. Apparently day of the murder, D did not go to work either. V came home from school around 3:45 and stabbed V 60 times. Look for evidence that indicates premed./deliberation - planning, motive, and manner of killing. Random nature of stab wounds indicate no preconceived killing, therefore
20 no intent, so gets 2nd degree because had malice (not vol. manslaughter b/c not a heat of passion crime) 1. Anderson Test: to determine premeditation (Rejected by many) (1) conduct prior to (2) behavioral record to V before killing previous relationship (3) Manner of killing 6. Subseq. appl. of Anderson Test Anderson analysis intended only as a framework to aid appellate review. 1. People v. Perez (Happened just after bunch of republicans voted into Cal. Supreme Court). Getting a second knife out of the kitchen drawer after the first knife was broken during stabbing, is indicative of premeditation and deliberation. Court allows inferences to be made that there was premeditation. Behavior after the crime helped prove premeditation. Ct. says Anderson provides descriptive guidelines, not a test. 7. The Manner of Killing 1. Austin v. United States: many murders most brutish and bestial are committed in a consuming frenzy or heat of passionas opposed to a calmly calculated plan to kill requisite for premeditation and deliberation. 2. U.S. v. Brown: D convicted of 1st degree murder even though V had 21 stab wounds. Killing done maliciously and w/ premeditation. 3. Guns: People v. Waters: V shot twice while sitting in car after driver refused to give D friend a match. Court decided there was premeditation: can s [I]t be inferred that formation of a homicidal intent occurred between the time that the defendant drew the weapon from his waistband and the instant he first pulled the trigger.Court further found that D stance - holding weapon with s two hands showed intent 4. Strangulation State v. Bingham: that it takes 3-5 minutes to kill is, without more, insufficient to prove premeditation; opportunity to premeditate doesn t mean there is premeditation (any time killing took more than a moment would lead to premeditation). 8. Subsequent actions Courts divided on whether proves premeditation 1. not relevant; D efforts to cover up not pertinent to question of whether D s acted with premed. at time of killing (Anderson) 2. relevant: post-killing actions (e.g., evasive tactics) support premeditation (Perez).
21 9. Appropriateness of using Premeditation to dist. 1st and vol. manslaughter Theory behind: who premeditates is more dangerous, more culpable or less one culpable of reformation than one who kills on sudden impulse; or that the prospect of the death penalty is more likely to deter men from deliberate than impulsive murder.Logical? 1. Problems that arise: is it possible to distinguish premeditated killings from intentional killings that are not premeditated? See above. Second: Does the distinction accurately divide more culpable killers from the less culpable? State v. Forrest:
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23 3. VOLUNTARY MANSLAUGHTER (HEAT OF PASSION) 1. Rational: V death partially justified b/c V provoked; D passion at moment of s s homicide makes him less responsible for his actions; recognizes frailty of human nature (Maher) 2. Actual provocation requirement 1. Generally: D must be in a rage b/c of something V did to provoke 2. MPC 210.3: D mental state may be fear or any violent and intense emotion s to dethrone reason. (1) is critical of idea that premeditated killers more culpable than impulsive 3. some courts distinguish sudden passion and rage (1) Payne p. 291. Ct. upheld murder conviction where D gets pissed off by V taunts, tells V to stop, then kills her by drowning her w/ head in s bucket. 3. Reasonable provocation req t 1. CL: following factors are sufficient to mitigate: (1) serious assault, battery, witnessing adultery of one wife, mutual combat, s unlawful arrest, commission of crime against close relative (2) State v. Thornton p. 285 D shoots separated wife lover in hip who dies s of infection. D watched lover and wife, left to get camera and gun, returns, hears them having sex, bursts in, tries to take picture b/f shooting V. Gets vol. manslaughter b/c of witnessing adultery. 2. Modern: (1) existence of reasonable provocation is case specific (2) average man standard: events such that reasonable man of average mind etc. would act just as rashly (Maher) (3) examples of insufficient provocation: (1) Ross p. 292. Parents lost custody of child. Wife continues prostitution to make money to by clothes; husband consents. Then wife uses money for drugs but refuses to tell D where drug kit is. D kills wife (2) Collins p. 292. D kills supervisor b/c she lowered job performance rating (3) Girouard racial slurs and insults alone are insufficient. (4) examples of sufficient provocation: (1) Raines p. 293 Man who lost both legs in car crash was taunted by d wife who committed adultery. She called him man Court half . reversed murder conviction b/c trial court erred in refusing to instruct jury on voluntary manslaughter. (2) Schick v. State Hitchhiker talks to V about finding sex or a blow job. V says he can take care of the latter. They go to baseball field where V makes advances to give D blow job. D kneed V, hit V in head, stomped him to death. D then took V wallet and wiped fingerprints s
24 from car. Voluntary manslaughter. 4. Series of provoking events Cumulative effects may mitigate when proximate cause would not be sufficient provocation for the reasonable person. Cf. Since voluntary manslaughter requires evidence of a sudden passion, a history of marital discord, particularly suspicions of adultery, if relevant at all, would undermine, not support, a defendant claim that the evidence supports a voluntary s manslaughter instruction. 1. State v. Hoyt p. 294 D (battered woman) killed V when he pushed her to floor several times. She got his gun and shot him. V had beat, taunted, humiliated D on numerous prior occasions. 2nd degree murder verdict overturned b/c trial court failed to instruct jury on voluntary manslaughter. 2. People v. Borchers V was D fiancee. V was simultaneously dating a pimp. s D worried V wanted to collect on his life insurance policy. V threatened suicide once. V then threatened again with gun, first to kill D, then herself. Taunted D to kill her. D shot her. Jury found guilty of 2nd degree; court upheld trial judge decision to enter verdict of vol. manslaughter. s 3. Girouard v. State Wife taunts husband by calling him a lousy fuck. Prolonged stress, anger, hostility caused by marital problems do not justify voluntary manslaughter. Words alone not enough. 5. No cooled passion requirement No mitigation to vol. mans. if sufficient time elapses b/t provocation and killing such that D (or reasonable person passion s s) would have cooled (Maher, Thornton) But, yardstick of time can be used by no the court to measure a reasonable period of passion but it must vary as do the facts of every case. 1. Sufficient time to permit cooling off (1) State v. Gounagias p. 295 2 wks. between when D was sodomized by V and after V started spreading rumors about the incident. Ct. upheld trial ct. exclusion of evidence of provocation. Evidence would have been s admissible had D done killing soon after incident or learning of the rumors. There was no sudden angeronly brooding thought . (2) People v. Ashland p. 296 17 hour waiting time (train ride to V house) s sufficient cooling off period. Court upheld refusal to instruct jury on voluntary manslaughter. 2. Insufficient time for cooling off (1) People v. Berry p. 296 20 hour waiting time insufficient for coolingoff. D entitled to voluntary manslaughter instruction. (2) People v. Nesler p. 296 Mother assassinated V while V was in courtroom at his trial for molesting D son four years earlier. However, given s voluntary manslaughter verdict due to series of events on the morning of the killing. Prosecutors said D was making good on a promise uttered over the course of three years.
25 (3) State v. Felton p. 297 Wife killed husband several hours after he had hit their child during an argument (had been this pattern). Wife given vol. mans. b/c of insufficient cooling time. 6. The reasonable person: Jury must determine whether reasonable person would have been provoked and whether they would have cooled off during the interval b/t provocation and killing. Do you consider D characteristics, or just those of s the reasonable person not with their characteristics? 1. George Fletcher: On the one hand, the reasonable person were defined to [i]f be just like the defendant in every respect, he would arguably do exactly what the defendant did under the circumstances. 2. Donovan & Wildman On the other hand, legal abstractions [like the generic reasonable person standard] not only hide . . . social inequities but also work to perpetuate them. 3. Consider D characteristics: s (1) Dir. Publ. Pros. v. Camplin Characteristics of D considered. Here, D s youth had effects on temperament and physique. (2) Regina v. Newell p. 299 Only those char. that have a degree of permanence and are definite and of sufficient significance to make D a diff. person from ordinary person (3) Felton p. 300 Battered wife characteristics 4. Don Consider D Characteristics t s (1) Bedder v. Dir. Publ. Prosecutions Impotent man kills prostitute for taunting him. Claims reasonable man with his handicap could have acted similarly. Court rejects. (2) Keenan PA p. 297 D intoxication s (3) Freddo p. 300 D sensitivity to epithets about his mom s (4) Washington p. 306 court rejected argument that RP standard should be that of average homosexual (5) Gonzalez p. 299 should avoid attributes such as race, creed, color, sex, social status 7. Diminished capacity defense (mitigating factor) p. 855 n. 1: impaired mental state obviates necessary mens rea. 1. a few states allow diminished cap. defense to negate premeditation/malice 2. CA does not allow since 1981 8. MPC approach: Says it not reasonable person standard, but a reasonable s excuse standard from perspective of the actor. Makes ambiguous. 1. Use Extreme Emotional Disturbance and excuse standard 2. reasonable excuse based on subjective standard, to be determined from viewpoint of person in actor situation under those circumstances s 3. factors to determine if EED exists (Shelton)
26 (1) can actor reflect dispassionately (2) time interval b/t provocation and act (3) whether intensity of feelings are such that D loses self-control 4. abandons preconceived notions about what constitutes adequate provocation 5. Applying the MPC: (1) Shelton p. 302 narcotics counselor not under EED when kills 14 yr.-old who threatened to expose D smoking pot w/ her s (2) Cassasa p. 302 even though D under EED when he kills ex-girlfriend b/c he is obsessed w/ her, court says D has no reasonable explanation b/c each of factors were so peculiar to him that ct. attrib. killing to D s malevolence rather than to an understandable human response deserving of mercy
27 4. UNINTENTIONAL HOMICIDE (Depraved heart/ extreme indifference; 2nd degree) 1. Does not require intent to kill (Malone) 2. Must have implied malice/ extreme indifference 1. must be high probability that death to another is likely to result 2. Malone Russian Roulette kid, I sorry2nd Degree. Gross Gee m recklessness, wickedness of disposition, hardness of heart, cruelty, recklessness of consequences and a mind regardless of social duty. All = implied malice 3. D must have appreciation of the risk 1. Berry CA 1989 p. 306 Pit bull kills 3 yr.-old. Did D have actual appreciation of a high degree of risk that is objectively present? Must be high prob. that act done will result in death and must be done with base anti-social motive and w/ wanton disregard for life.... can be shown by abandoned and malignant heart. 2. Ashburn p. 306 Another Russian roulette case. Need to have substantial risk, but need not be greater than 50%. 3. Regina v Lamb p. 306 Russian Roulette. D entitled to instruction of lesser charge [here, in UK, was guilty of manslaughter] b/c D believed it safe to fire gun (didn know pulling trigger rotated cylinder so as to place one of bullets t opposite the barrel), and defense experts testified his belief was reasonable. 4. Depraved heart factors 1. social utility of D conduct s 2. magnitude of risk (nature of harm X, percentage of likelihood) 3. D knowledge of risk some argue s extremeindifference meaningless, b/c can be more indifference than just plain indifferent. t 4. D precautions to minimize risk s 5. Vehicular homicide (drunk) as 2nd degree Courts split on this 1. Pro 2nd degree (1) Pear p. 310 Where drunk driver made abundantly clear of danger of his driving, and his driving was grossly negligent (went through light); warned by police and passengers (2) Watson p. 311 Ct says have probable cause for 2nd degree murder when D drives to bar, drinks heavily, ct. presumes D must have known of inherent behaviors in such activities prior to engaging in them (3) Simmons life sentence for 2nd degree in drunk driving murder is not cruel and unusual 2. Con 2nd degree (1) Essex v. Commonwealth p. 311 2nd degree murder requires proof of intent to do and act in wanton/wilful disregard of obvious likelihood of death.
28 Here, jury can only speculate if D acts wilfully or maliciously 6. Intent to cause SBI as 2nd degree murder 1. CL Intent to cause SBI sufficient to establish malice necessary for 2nd degree (1) Dorazio p. 313 prize fighter convicted of 2nd degree murder when he punched V repeatedly after V was on ground (1) brutal persistent attack on helpless V shows a measure of depravity that imports malice 7. MPC 210.2(1)(b) p. 944 1. murder includes homicide committed recklessly under circumstances manifesting an extreme indifference to human life 2. does not create separate form of murder for SBI or vehicular homicide
29 5. INVOLUNTARY MANSLAUGHTER Criminal recklessness/negligence
1. Someone has to pay the price but should the case be dealt with by tort law?
2. Make criminals out of people who are trying to do their best or just being stupid. 3. Why extend homicide liability to negligent conduct? (1) Appears that threatened sanctions cannot influence the inadvertent actor. (2) punishment for negligent homicide may stimulate care that might otherwise not be taken. (3) Jury must evaluate the actor conduct and determine whether it should be s condemned. 4. CL 1. high degree of likelihood that substantial harm will result (1) Commonwealth v. Welansky 55 N.E.2d 902 (Mass. 1944): Defines wanton and reckless. Wanton may contain a suggestion of arrogance or insolence or heartlessness that is lacking in the word reckless. grave danger to others must have been apparent and the defendant must have chosen to run the risk rather than alter his conduct.Cannot escape culpability when the ordinary manwould have recognized the gravity of the situation. 2. D indifferent to or disregards the probable consequences (1) Walker CA 318. conduct of accused must be a departure from what would be conduct of ordinarily prudent or careful man under same circ. as to be incompatible w/ a proper regard for human life. 5. Awareness of risk standard 1. Subjective: requires actual awareness of risk in order to support invol. mans. conviction (1) Commonwealth v. Feinberg. (Pa. 1969): D sold industrial strength sterno cans to residential customers contained lots more methanol; carton labeled same, but can lids had big warning; 31 died during week-long period when cans sold (D realized weren right (fewer customers?) so t sent back). Indicted on invol. mans. (1) Ct: When a death results from the doing of an act lawful in itself but done in an unlawful manner, in order to sustain a conviction for manslaughter the Commonwealth must present evidence to prove that the defendant acted in a rash or reckless manner . . . must be such a departure from the behavior of an ordinary and prudent man.[Court talking about consequences of act, not manner. (2) D knew customers would drink the sterno; sterno was poison; illegal; didn think it will kill them (they keep coming back) - did not t appreciate the risk.
30 6. Mens rea: eg: wantonness, willfulness, recklessness, indifference, disregard, culpable negligence, criminal negligence, gross negligence. Can we give content to any of these words? Incapable of precise definition? 7. Comparing Civil Tort Liability Invol. mans. requires higher degree of culpability than necessary to impose civil tort liability in most states. Crim. Liability: requires something more than simple negligence. 8. Comp. depraved heart murder Wanton and reckless disregard for human life used by courts for both involuntary manslaughter and depraved-heart murder. Look at degree of risk for the reckless act - often determines the difference. 9. Awareness of the Risk In Feinberg, D knew that customers used the sterno for drinking. Some courts require proof that D was aware, while others do not (allow for conviction even when D was probably not aware). 10. The MPC Separates into to crimes: 1. manslaughter homicide that is committed recklessly. 2. criminally negligent homicide: committed negligently 11. Sample Cases 323-4 1. People v. Rodriguez Mother left four children at home. Home caught fire, one died. Verdict: at most, negligent; reversed an involuntary manslaughter conviction. 2. Hall v. State Family relied on prayer to cure child who died of pneumonia; conviction on charges of reckless homicide upheld. 3. People v. Melanie Green Mother coke habit hurt fetus; when baby born, s underweight, brain-damaged; died two days after birth. charged with invol. mansl. but charges dropped because grand jury refused to indict. 4. State v. Ford Motor Co. Pinto car recall. First corporation in this country to be criminally prosecuted for homicide based on a defective product. Charged with reckless homicide (recklessly designing and manufacturing).Would have cost $10 to repair. Jury acquitted Ford. 5. People v. Protopappas Three patients of dentist died of overdose of generally anesthesia over five month period. Court affirmed depraved heart murder convictions. 6. People v. Strong D believed and practiced religious ritual of mind over matter. Apparently had successfully plunged knives into people with no problem. One day, guy called out father.D reassured, plunged knives in and killed V; No, court reversed involuntary manslaughter conviction on ground he was entitled to jury instruction on negligent homicide.
31 6. FELONY MURDER
1. Policy issues surrounding felony murder rule
2. FM: considered anachronism by many. Why? 1. Early on, went unchallenged b/c all felonies punished by death. England abolished in 1957. Several U.S. states have followed. 3. Basic issue: FMR goes against basic principle of criminal law that crime requires a culpable mental state; it erodes the relation between criminal liability and moral culpability. 1. FM doctrine gives rise to what can only be described as an emotional reaction, no one based on logical and abstract principles. 2. Problems stem from early CL: concept of culpability was not an element of homicide. Early definition of malic aforethought vague meant little more than intentional wrongdoing. Under this definition of malice aforethought, intent to commit felony would itself constitute malice. Thus, FMR did not broaden definition of murder early on. 4. Constitutional issues Can look at rule in two theoretical ways: 1. Constructive malice malice necessary for murder is presumed from : commission of a felony (violates due process where D must shoulder burden of proof); or, 2. creating distinct form of homicide that does not require proof of malice but only death resulting from commission of a felony (violates 8th A and due process by imposing strict liability for a serious, nonregulatory crime). 3. Basically, society writes the rules and they are not always based on logic, but more on a desire to see someone held responsible for the death. Constitutional challenges have not proved successful. 5. Pro/con argument 1. pro: deters dangerous felonies; deters felons from killing negligently or accidently 2. con: malice is an essential element of murder and it is wrong to impute malice 6. People v. Aaron. 325 Conviction of murder requires malice; No longer acceptable to equate the intent to commit a felony with the intent to kill 1. malice can be inferred from evidence that D set in motion a force likely to cause death or SBI, where there is an inherently dangerous felony a jury may consider the nature of underlying F (helps determine if was implied malice) 2. fundamentally unfair to hold one felon liable for unforseen and unagreed to results of co-felon. Malice is the intention to kill or do great bodily harm, or wanton or willful disregard of likelihood D behavior will result in those s things. 7. Crump article Defends FMR: Robbery that causes death is more akin to murder than to robbery. Critics of felony-murder rule extol value of mens rea, at expense of actus reus. Punishing under felony-murder rule serves a deterrence function and
32 reinforces societal norms through condemnation. Also: robber who kills The intentionally, but who might claim under oath to have acted accidentally, is thus told that he will be deprived of the benefit of this claim.Often, deaths which the evidence makes accidentalis based on ambiguous evidence. 8. Accid. deaths during felony 331-2 1. People v. stamp. Three D convicted of felony murder when owner of store s they robbed died of heart attack 15 minutes after holdup. Court found irrelevant V obesity, age of 60 years, history of heart problems. s 2. Anthony M Purse-snatcher who whirled victim around; V broke hip, underwent surgery and died eight days later convicted. (1) Appropriate to convict of FM b/c robber takes his victim as he finds the himand therefore, does not matter whether he intended to do actual [i]t harm, or whether he did not contemplatethe killing? 9. The MPC Approach 1. Abolishes CL doctrine of f-murder. 2. Instead: elements of recklessness and extreme indifference required under 210.2(1)(b) are presumed if the actor is engaged in or is an accomplice in the commission of, or an attempt to commit, or flight after committing or attempting to commit robbery, rape or deviate sexual intercourse by force or threat of force, arson, burglary, kidnapping or felonious escape. 3. Comments note that homicide during felony or attempted felony will generally be murder, independent of f-murder rule. Only NH has adopted MPC approach. No other approach proposed by MPC has been so widely disregarded. 10. Limitations on felony murder doctrine 1. Inherently dangerous felonies (1) majority: specific circumstances approach to determining if felony is inherently dangerous (Aaron) (1) majority of cts. say felony is inherently dangerous if committed in a dangerous fashion or can be committed dangerously (2) Heacock p. 340 circumstance approach: provider of coke liable for death from overdose b/c should have known that injecting was inherently dangerous b/c had seen another react violently to same drug (2) minority: abstract approach to determine whether felony inherently dangerous (Wesson) (1) is a categorical analysis and independent of facts of case (2) courts have three diff. threshold levels for this: theoretical; likely; possible 1) Wesson. CA. Abstract Underlying felony must be inherently dangerous to convict. D making sale of crack to V. Sale went bad,
33 D stabbed V. D contends attempted sale or sale of crack cocaine cannot be the underlying felony to support charge of felony murder. Conviction on these ground would equate possession of crack to possession of a gun - nothing inherently violent or forcible in sale of crack cocaine. 1) Prosecution claims: drug sales are active crimes in an environment that creates reckless disregard of consequences a and fuel that opportunity for confrontation that the Court requires. Court rejects this on grounds that intent being transferred is not recklessness, but premeditation and malice. 2) Bouroughs CA 339 Abstract Relevant inquiry is whether the felony, taken in abstract, is inherently dangerous to human life, or whether it is possible that it could be committed w/o creating such peril. 3) People v. Jackson Man choked/beat 33 mo. old son. Convicted of FM. Merger doctrine N/A because, unlike Smith, D had an independent, collateral purpose separate from the intent to inflict bodily harm- namely, coerce the child into obeying his to father will.Court reasoned death not intended but accidental: s is precisely such an unintended but eminently foreseeable death It that the felony-murder rule was fashioned to prevent. (3) diff. approach 1) People v. Patterson: V died of drug overdose on cocaine supplied by D. D not guilty b/c, in abstract, selling coke not inherently dangerous (3) Impact of alternative definitions Even if examining the particular facts, existence of dead victim might necessarily lead to conclusion that underlying felony is exceptionally hazardous. Alternatively, abstract approach criticized because so few felonies are inherently dangerous in the abstract. 2. Merger Doctrine (1) State v. Smith. CA 348 May felony child abuse serve as the underlying felony to support conviction of 2nd degree murder? Acts constituting such child abuse were integral part of homicide, and the offense merged into homicide. When person willfully inflicts unjustifiable physical pain on a child it is diff. to see how D would be deterred from killing negligently or accidently in the course of felony by application of FMR (2) Majority disagree w/ CA which holds that the merger doctrine applies where the underlying felony is burglary. Is the fortuity of an entry sufficient enough to distinguish the crimes of assault and burglary? Less chance for V to escape their home; greater likelihood of injury. (3) Rejection of merger doctrine A few courts have rejected merger doctrine
34 altogether. Here, felony murder rule applies even where the underlying felony is assault. 3. Agency Doctrine (1) Majority: agency approach (only if the felon is the agent of murder can he be held liable). (1) People v. Washington. 346 D appeals from murder conviction for participating in a robbery in which his accomplice was killed by the V. 1) liability is limited to homicides in furtherance of their common design committed by a co-felon 2) surviving felon not liable for death of co-felon killed by third party (but is liable if co-felon is killed by other co-felon) (2) mere coincidence of time/place not sufficient to show that homicide is in furtherance of felony 1) U.S. v. Heinlein 351 Co-felons convicted of f-murder: were holding rape victim down; V slapped Heinlein who then stabbed V to death. F-murder convictions overturned because stabbing was not an expected result - not part of the common purpose of original felony (rape). F-murder rule N/A when murder was part of a totally separate act from common unlawful purpose that was part of the felony. (3) underlying felony must have caused death several views on what is causation 1) Anthony M causation satisfied if D was an actual contributory cause of death even if not sole cause 2) King death must be consequence of felony; act causing death must not have been directly calculated to further felony (4) minority rule exception: unforseeability defense 1) 10 states have aff. defense if D did not commit/aid in fatal act; D not armed, and had no reason to believe that co-felons intended to commit deadly/SBI act 4. Proximate Cause (Minority) (Dissent in Washington) D liable for all death that arises from a direct and almost inevitable sequence from the felony (1) Felon in motion a chain of events which were or should have been set within his contemplation. (2) Only a few states still use this doctrine, although used to be widespread. 5. Deaths of Cofelons Most courts agree with Washington that f-murder doctrine even applies when homicide victim is cofelon. To distinguish based on character of the victim (e.g., innocent bystander v. cofelon) is arbitrary. Some courts refuse to follow this on the logic that would be incongruous to . . . it plac[e] the perpetrators themselves beneath [the mantle of f-murder]and the
35 law was put in place to prevent deaths of innocent people. Majority could disagree w/ this on grounds that the tort doctrine of assumption of risk has no place in criminal law where wrong being addressed is public. 7. Death Penalty 1. General 1. 36 states and feds allow death penalty 2. Gregg v. Georgia Supreme court reinstates death penalty 3. 1995: 56 people executed (all male; 22 black, 23 white, 1 asian) Racist 4. 8 on fed. death row 5. 3,054 on death row (1200 black) 2. Mandatory death sentences not constitutional 3. McCleskey v. Kemp US 1987 358 1. D appeals death sentence b/c Georgia capital punishment administered in racially discriminatory fashion. Violates 8th/ 14th Amendments. Based on Prof. Baldusstudy shows disparity in imposition of death penalty in 2000 GA murder cases. D uses Baldusstatistics to support claim of discrimination. BUT: Court asks that D show purposeful discrimination (in his case) under equal protection violation. 2. Next contends sentence disproportionate to other murder cases. 3. most, the Baldus study indicates a discrepancy that appears to correlate At with race. 4. A later dissent by Blackmun on another case: Death penalty unconstitutional b/c may not be capable of devising procedural or substantive rules to We prevent the more subtle and often unconscious forms of racism from creeping into the system.
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37 6. CAUSATION
(Most relevant to homicide cases or cases where there is harm) No real differences b/t MPC and CL. Law requires some amount of foreseeability (see mens rea). 1. When is Causation an Issue? 1. But-for causation [very obvious rule w/ weak requirement; unexpressed part of most murder] 1. E.g., V dies of brain aneurism at precisely the moment of mugging, inquiry into homicide liability not forthcoming. [Cf. a system of justice that punishes scapegoats and not the persons who caused the harm.] (1) Hastening death is still liable. Reasons for this rule is morality, not logic. D can assert this as an issue, then gov must prove otherwise. t 2. Glanville Williams article: But for causation is only for rare cases; what if two fatal wounds are given by two different people at the same time and each would have caused the death? 3. Criminal rules narrows who should be included as liable b/c people can be responsible for their own actions (cf. employees; insanity - they cannot control their own actions - no free will). 4. Causation and responsibility are not the same. 2. Intervening actors and events (Can intervening human actor break the chain of events) 1. People v. Kibbe.. Reasonably foreseeability of ultimate harm (death) 2. Causation and Foreseeability: In Kibbe, acts of accused were v. important to placing V in the fatal situation. 3. Foreseeability and Recklessness: Accused in Kibbe were reckless in disregarding the risk of the highway, but would not be considered reckless in the tiger scenario. 4. According to book there would be a distinction, however, if V had been left on road to freeze to death but was mauled by an escaped Siberian tiger: the accused could not reasonably foresee an escaped tiger. (1) RKL disagrees: Should the manner of harm be the foreseeable element, or the ultimate harm (which, in the book, includes the manner)? No. Accused still placed V in foreseeable danger (of road on cold night); just because that didn happen is irrelevant. Means of ultimate harm are irrelevant. t 3. Should Causation Matter? If liability were based solely on conduct and state of mind, there would be no occasion to disting. b/t attempts and successes - no reason to take the actual result into account in criminal liability. 1. Meir Dan-Cohen: suggests that foreseeability is linked to blameworthiness and that notions of retribution, based on intuitions of blameworthiness, are at the
38 heart of criminal law. Causation is a legal result of our intuition that the actual death is relevant in determining liability. [Cf. Stephen Schulhofer hypo (p. s 630) about two men shooting their wives in exactly the same place: one dies, the other is saved by a miraculous operation; should one be more culpable? 2. MPC Remote and accidental (adds the concept of justice) 1. 2.03 Causal relationship b/t conduct and result; divergence b/t result designed or contemplated and actual result or between probable and actual result: Conduct is the cause of a result when: 1. it is an antecedent but for which the result in question would not have occurred; and 2. the relat. b/t the conduct and result satisfies any additional causal requirements imposed by the Code or by the law defining the offense 2. When purposely or knowingly is an element of the offense - the element is not established if the actual result is not the purpose or contemplation of the actor unless: 1. Actual result differs only in different person and less serious injury. 2. Actual result involves same kind of injury designed or contemplated and is not too remote or accidental in its occurrence to have a just bearing on actor s liability. 3. When recklessly or negligently is an element of the offense - element is notestablished is not within the risk of which actor is aware. 1. Same as 2. 2. Same as 2. 4. When causing a particular result is a material element of an offense for which absolute liability is imposed, element is not established unless actual result is a probable consequence of the actor conduct. s 5. Remote and AccidentalConsequences as Unforseeable Note that the Kibbe decision was based on the actual result being foreseeable; how is this different from MPC requirement that the result not be s too remote or accidental in its occurrence? 6. Moral Aspects of Causation (MPC inclusion of the term s [just] 7. Causation and Voluntary Intermediaries 3. Limits of Causation 1. Questions about superceding causes arise in 3 situations: 1. acts of a 3rd party (Kibbe); 2. acts of the victim themselves (e.g., suicide); 3. acts of D where result occurs in a way not contemplated by D. 2. Acts of Third Parties 1. Expected or Planned Acts of Third Parties Hypo: Two rival gangs at war. One gang hires a killer (K) to kill head (A) of the other gang. A hires a look-alike (V) to impersonate him. V is killed. K
39 is clearly liable for intentional killing, but A would be liable under MPC and the California draft b/c the result is within the purpose or the contemplation of the actor [A]. (1) Characterizing the Foreseeable Intervenor. A role eludes conceptual s characterization. (2) Can there be multiple independent and responsible causal agents? Some have argued: prior unlawful actors in the causal chain are insulated All from liability if the person who strikes the fatal blow is a responsible, selfdetermining actor.See novus actus interveniens [ new intervening act ] whatever the relation of one person acts to those of another, it For s cannot be described in terms of that sense of cause and effect appropriate to the occurrence of natural events without doing violence to our conception of a human action as freely chosen.Not quite accurate, though: confuses causal explanations, with explanation in terms of inevitable, natural... chains of events. (3) Causing v. Hoping. Different. What if S sends T to CA hoping T will be killed by earthquake. Miraculously, T is at the epicenter of an earthquake and is killed. What is missing here that was present in impersonator example? 2. Coincidental Acts of Third Parties (An issue in Kibbs) Why give Kibbe the benefit if the tiger runs across and kills V before the truck hit him? 3. Commonwealth v. Rementer. Extraordinarily remote and accidental 1. D assaulted V and chased her into streets of Philly. V tried to get in Vito car at s
intersection. Vito et. al locked car doors and Vito pushed Berry away out of fear. Vito then accidently ran over Berry. D cause need not be sole cause. What s
distinguishes tort causal liability from criminal causal liability: result must be not extraordinary, remote or attenuatedthat would be unfair to punish. so More than sufficient evidence here to show result was foreseeable. 4. Foreseeability of Responsive Acts (disting. from coincidental acts): When does maltreatment in a hospital constitute a superseding cause? 5. Human and Natural Interventions: If a battered victim is left to die of his wounds in electrical storm and is struck by lightening, this to is hardly remote and accidental. But an asteroid probably would be. 6. Acts of Victims 1. Suicidal Acts of Victims (1) Rex v. Beech: Natural Consequence V jumps out of window after Beech told he come in and rob her (had d previously molested her). Was sufficiently a natural consequence to find guilt.
40 (2) Stephenson v. State. Natural and Probable Consequence (1) Train ride of sexual assaults. Stop at motel. Drug store for bichloride of mercury. Stephenson caused her to be crazy? She was under their control - not in a traditional sense. D argues she was a free agent when went to drug store. O.k. for jury to determine this question fact. 1) Dissent Unlawful act must be proximate cause of death. 2) Re: probability: Most rape victims don kill themselves. t 3) Does Stephenson meet test of MPC that V suicide not be s too remote or accidental in its occurrence? (3) Reeds case w/in this (4) Tate v. Canonica. 647 Substantial factor (tort claim for wrongful death Foreseeability not at issue (1) Ds taunted and humiliated (causal act is purely verbal) V to the point that V killed himself. (2) Court reasons that where D intended, by his conduct, to cause serious mental distress or physical suffering, and does so, and such mental distress is shown by the evidence to be substantial factor in a bringing aboutthe suicide, a cause of action for wrongful death results. (3) Difference b/t this and criminal liability is: foreseeabilty: no criminal liability unless the suicidal acts are foreseeable, tort liability possible notwithstanding the unforeseeability if D contribution was s substantial . 2. Other self-destructive acts of victims (1) Shirah v. State AL 648. Victim drank morphine mixture supplied by DAppellant Shirah while they were all drunk and high. D claims V voluntarily and knowingly drank - his conduct was a superceding cause that broke chain of causation. Here, D made the morphine available and was present when V drank it - V actions were a concurrent, rather than s superceding cause. (2) Compare Shirah with Commonwealth v. Feinberg (Sterno). D responsible b/c V voluntary consumption was not an intervening/superceding cause s because such an act was a contemplated consequence. (3) Reaves v. State (Ind.): 4. Complementary and Concurrent Acts 1. Russian Roulette/ Drag racing. (1) Under MPC, the acts that result in death are hardly remote and accidental Liability under Reckless Homicide (murder or manslaughter). . But, in drag racing, mistakes of participants are often unexpected and can
41 be superceding causes. 2. Commonwealth v. Root (Pa.): Drag Racing. V swerved into oncoming truck in attempt to pass D. Both D and V driving recklessly. D guilty verdict of s invol. manslaughter reversed. Tort liability concept of proximate cause has no proper place in prosecutions for criminal homicide and more direct causal connection is required for conviction. 3. State v. Bauer (Minn.): Girl and boy go to woods to commit suicide together. Boy walks away after trying to convince girl not to do it. Girl then kills herself, and her 6 mo. old fetus. Was boy gun. Boy claims didn know V s t was pregnant. Bauer contests charge of fetal homicide: no causation. Court says yes that the fetusdeath was a foreseeable consequence of V suicide s because D participated in the suicide cases. accomplice can be guilty of An felony murder even though his accomplice commits an intentional act which more proximately causes the death.Note: Felony murder statutes allow evasion of causation provisions: consequences that might otherwise be too remote or accidentalbecome legitimate. 4. Comparing Root v. Bauer: In Root, the one who died was also reckless but survivor not liable even though reckless; Bauer similar b/c girlfriend was reckless, but he was held liable; cf. Shirah convicted of negligent homicide b/c he caused it even though guy who drank it knew it was morphine. Where is logical consistency? Shirah and Root distinct based on cognizance of risk (noone understand risk of drinking morphine). In Root, both understand inherent risk of drag racing, and Root could have avoided the risk, but he gets off. Kind of examining intent w/ regard to causation, even though we don normally t think of causation w/ respect to intent. Really, we are looking at culpability. 5. Beech (Woman jumps off balcony) and Stephenson (KKK): Are a product of their time to some extent: what is woman reaction to being raped - back s then, maybe woman felt compelled to jump b/c of honor (and society s response to it). Now, conceptions of rape different. 5. Changing Conceptions of Responsibility Responsibility and causation are in fact incompatible. See Kadish article (Similar to Hart Honore) s See Feinberg p. 664
42
43 INCHOATE CRIMES Should we make these crimes, or only the substantive crimes once completed? Yes, prevents. Protection from harm. No, criminalize thoughts. Fascist. Const. rights to speech/free assoc. EVOLUTION OF CRIME
Idea Solicitation Communication Conspiracy Agreement (Communication back) Attempt Accomplice Subst. Step (helping) Crime
Crime ATTEMPT SOLICITATION CONSPIRACY
Mens Rea 1) that of underlying crime; and, 2) purpose Purpose Purpose (some states, knowledge enough)
Act Substantial step Encouraging; specific conduct or general? Agreement (unlawful act; tort, misdemeanor); maj. states require overt act in addition (anything is overt, though)
[ACCOMPLICE - not crime] Note, you may be an accomplice to an attempt. How can you be an accomplice and not also be in a conspiracy? Only poss. in law school hypo. Merger: CL- had a merger rule: If you commit the crime, all the criminal acts leading up to the crime merge with it. MPC (Modern Trend): No merger doctrine for conviction: If you rob a bank, you can be convicted of robbery, attempt, conspiracy, solicitation. But you won be sentenced t for all of them.
7.
ATTEMPT 1. CL Elements 1. an intent to do an act or cause results which would constitute a crime; and 2. an act/omission that goes beyond mere preparation. 2. MPC 5.01(1)(b): When causing a particular result is an element of the crime, [the
44 actor] does or omits to do anything with the purpose of causing or with the belief that it will cause such result without further conduct on his part.[Terrorist who sets bomb that doesn go off liable] t 1. When actor interrupted in a course of conduct intended to cause harm. 2. Mistaken belief on part of actor. D goes to chop of sleeping V head, but V s was already dead from drug overdose. Issues of impossibility. These are controversial. MPC 5.01(1) allows person is guilty of an attempt to commit a a crime if ... he purposely engages in conduct which would constitute the crime if the attendant circumstances were as he believes them to be.Many modern codes follow this. 3. General: Punishes those who have caused no harm, but who have tried. 1. What is achieved by extending liability to those who fail? 1. Those who try as blameworthy as those who succeed; 2. restrains those who try to commit; 3. general deterrence greater if potential offenders punished for trying. How severe is punishment? Differing approaches, e.g.: 1. MPC 5.05: Punish most attempts as severely completed crimes b/c actor presents same danger and merits same degree of blame. 2. Cal. Penal Code 664. Attempts get term of that applied to successful crimes. 3. Traditional approach: punish attempts mildly 4. Last two reflect public sentiment re. retributive function of law, disfavor of for an eyewhen an eye hasn been lost eye t 2. Kinds of attempts: Three categories: 1. Fateful attempt: Actor does or omits to do something with the purpose of causing or with the belief that it will cause such result without further conduct on his part. 2. Interrupted attempt: Actor is interrupted in the process 3. Impossibility: Mistaken belief on the part of the actor which makes crime impossible to be achieved. 3. Mens rea: MPC: Purpose required: MPC refuses to punish those who were merely reckless or negligent. (Mens rea for attempt is often higher than that for the actual crimes.) Can be guilty of attempted recklessness. Can be convicted t t of attempted 1st degree murder if you didn have malice. You are guilty if you t act purposefully if the facts were as you believed. (Majority view). Some argue recklessness sufficient for attempt charge where it suffices for the completed offense. (p. 600) 4. The act: 1. MPC (p. 924): Mere thoughts not enough. Acts that constitute an attempt, per
45 MPC 5.01(c) 2. act or omission constituting a substantial step in a course of conduct an planned to culminate in [the actors] commission of the crime. 3. 5.01(2): sets forth several types of conduct that can satisfy the substantial steptest if strongly corroborative of the actor criminal purpose. s 4. U.S. v. Jackson. Substantial Step (1) Trio of bank-robbers caught while casing the joint. When punishing for an attempted crime, the actor need only have undertaken a substantial step towards the ultimate crime. 5. Young v. State (Md.): driving around, casing bank, has eye-patch, glasses, knit cap down and white gloves, hand in pocket with a gun, tries the door but it s locked. Arrested when he leaves and convicted (substantial step). 6. U.S. v. Buffington: 9th Circuit. Ds made lots of preparations for bank robbery but were not found guilty b/c conduct was entirely tentative and unfocused. Facts not much different from Jackson - weird decision. Jury convicted, but appeals court reversed. 7. State v. Molasky: Trying to convict of attempt. Solicitation Prisoner serving 32 yr. term offered $5k to other prisoner to kill his ex-wife and her new husband. Solicitation only punishable if constitutes a substantial step Here, . no money given and Molasky hadn even given a picture of wife or her t address to the guy. 5. Physical proximity approach: D must come physically close to completing crime; 1. cf. MPC approach b/c where focus is on what remains to be done. 2. People v. Rizzo NY 1927. Ds looking for certain guy to rob. Driving around. Stopped, let one D search a building for him, at which point arrested. Court ruled they had not come dangerously close to success. 6. Comparing the 2 approaches: Contrast Rizzo w/ State v. Latraverse. Latraverse had been put in jail by Lombardi. 1:40 AM, D went to Lomb. home and parked s w/ lights off. Was caught w/ gasoline, rags, bat, etc. Convicted as he had passed the substantial step test. 4. Defenses 1. Renunciation (Hardly ever works - even Staples didn get it) t 1. CL: Once D has crossed line from preparation to attempt (e.g., substantial
46 step attempt cannot be renounced. ), (1) People v. Staples. Guy rented apt. above band and began drilling holes. If it is established that D has intent to commit a specific crime and his preparatory acts reached a stage of advancement in relation to the substantive crime, he may not renounce his attempt. 2. MPC (Trend today) Recognizes voluntary renunciation as defense to attempt. (1) But note, People v. Kimball: abandonment is not voluntarywhen the defendant fails to complete the attempted crime because of unanticipated difficulties, unexpected resistance, or circumstances which increase the probability of detection or apprehension.This is consistent w/ MPC 5.01(4): which reasons renunciation as a defense on two grounds: (1) renunciation of criminal purpose tends to negative dangerousness. However, if actor renounces involuntarily, the criminal intent remains and the actor is still dangerous. (2) provide actors with a motive for desisting from their criminal to designs, thereby diminishing the risk that the substantive crime will be committed.Here, defense of renunciation used as carrot to induce criminals to abandon plans. Hard to really determine, however, why D has abandoned plans. (2) People v. Johnson Colo. 1978. Biker goes up to house and breaks window. Then goes away, but not before witness sees him and calls police. D captured by police 2 blocks away heading back to house. Convicted, but appellate court remanded b/c jury not instructed on voluntary abandonment. Jury must evaluate whether he had, indeed abandoned (since he was heading back) and if so, whether it was voluntary (perhaps had left b/c of worries about the witness). 3. Defendant who commits a lesser crime prior to renunciation: A seeks to commit crime X, commits lesser crime Y, and then vol. renounces all criminal purpose. A not liable for an attempt to commit X. Cf. State v. Smith: Ind. 1980: Disallows renunciation as a defense for the ultimate crime once the intermediary crime had occurred. D stabbed V but was remorseful and took V to hospital. Once wounded, attempted murder could not be abandoned. Court could have applied modern rules and come out the other way - he had renounced, and prosecutor could convict of, say, assault. 4. Can renounce a completed crime. Can steal and give back to renounce t t your theft. But note you can renounce inchoate crimes - provides an incentive to stop crimes before it happens.
47 2. Legal and factual impossibility: 1. CL (Minority): (1) Legal impossibility = defense, (2) factual impossibility no defense. (3) LEGAL IMPOSSIBILITY: crime to attempt that which is legal. No Functions: 1) to verify criminal purpose if D conduct, objectively, s ambiguous and could lead to doubts about the firmness of his purpose; 2) Supplement defense of entrapment (note MPC has separate provision for entrapment that should cover what is being attempted here); 3) law need not concern itself w/ innocuous conduct. (1) State v. Guffey (Mo.) (p. 611) Ds who shot at a stuffed deer out of season did not attempt to take a deer out of season, even though they believed dummy to be real. crime to take a stuffed dear No (2) Sherlock Holmes: The Empty House. Guy shoots at a wax bust of Holmes he had put up as a trap. Not guilty b/c no crime to shoot a dummy, so Holmes charges him with a previous murder. (4) FACTUAL IMPOSSIBILITY: Jurisdictions that allow for legal impossibility, distinguish cases of factual impossibility. When consequences sought by D are criminal, no defense that D could not succeed in reaching his goal b/c circumstances unknown to him. State v. Moretti: Man held liable for attempted murder when shot into room where V usually slept, but, on that night was asleep in another room. Man could be held liable for attempted grand larceny for picking an empty pocket. (5) DIFF. B/T FACT/LEGAL IMPOSSIBILITY: Turns on D intent; note s the distinction is not that clear and appears to be verbal sophistry. Only minority of states still accept legal impossibility. Public policy arguments. 3. MPC Approach (Majority): Rejects traditional approach b/c of arbitrariness of above definitions. 1. D punishable so long as D s conduct ... would constitute the crime if the attendant circumstances were as he believes them to be. (1) Law of attempts should be concerned w/ manifestations of dangerous character and preventative arrests. 2. People v. Dlugash. D and two others were drinking until wee hours of morning. V shot by third guy. D then shot V five times in the head, certain that V already dead. Ct. adopted MPC: Guilty of attempted murder. Looks only to intent of actor. No defense to a charge of attempted murder if crime is factually impossible.
48 5. Inherent Impossibility A uses Voodoo doll to kill B. Under MPC is guilty, but MPC provides if solicitation or conspiracy is so inherently unlikely to result or culminate in the commission of a crimethan not guilty. Judge could reduce sentence or dismiss attempted murder charge. Sort of getting rid of the act, but still requiring the element of harm (voodoo doll). 6. True Legal Impossibility It is never a criminal attempt, under MPC or CL, to attempt to do something that would not be a crime even if the circ. were as D thought.
49 8. SOLICITATION (always bogged down in politics)
1. Elements General 1. encouraging or advising another to commit crime 2. with intent that other commit the acts constituting the crime 2. MPC: 5.02(1): Elements: 1. person is guilty of solicitation to commit a crime if with the purpose of A promoting or facilitating its commission he commands, encourages or requests another person [unclear] to engage in specific conduct which would constitute such crime or an attempt to commit such crime or which would establish his complicity it its commission or attempted commission. 2. MPC 5.04: Immaterial that person with whom you are conspiring is immune (say FBI agents doing a drug deal with you and local police arrest the whole gang - no defense) ASK Little 3. Communication 1. CL: had to be actually communicated 1. Cotton Prisoner sent letter to wife. Other inmate took out letter and put in blank. NG b/c solicitation of wife to bribe daughter not received. 2. MPC 5.02(2) actual communication not required 4. What Crimes must be encouraged 1. CL: Solicitation when person encouraged or advised another to commit felony or misdemeanor. Modern statutes: limit liability to situations where D encouraged one of crimes specified by the statute. 2. MPC punishes solicitation of any crime, 3. Most jurisdictions (CA) there is a list of crimes. Some federal cases allow for conspiracy in tortuous acts. 5. Grading solicitation Solicited person need not commit the solicited crime. Generally only charged when solicited crime not attempted or committed b/c if crime was committed, then the solicitor is guilty as an accomplice. If crime attempted, then solicitor is an accomplice to the attempt. MPC 5.05(2) places equal liability on solicitation, attempt, and conspiracy. 6. Solicitation is not an Attempt Is mere preparation in most jurisdictions. 1. Gervin Hired, persuaded another to kill. NG of attempted murder 7. Defenses: Renunciation 1. CL: as with other inchoate crimes, solicitation could not be renounced. 2. MPC: 5.02(3) recognizes a defense in cases of complete and voluntary renunciation where solicitor persuades solicited person not to commit the crime.
50 I not sure I buy this. m 8. Soliciting a large group Why is there a difference to general solicitation? 1. State v. Schleifer. Labor rally -- kill the bosses and managerial class. Solicitation must be directed to one individual soliciting the accomplishment of some particular act which, if complied with, would result in the commission of some specific offense. Definitely person communicating to large group of people to break the law - doesn matter that we can pick out a particular individual. Just t t plain dangerous. Affirm conviction for solicitation (decision reflects overtones of anti-labor sentiment) 2. People v. Quentin, NY 1968. No solicitation in a brochure that tells general public how to make bombs and psychedelic drug. Definitely person communicating to large group of people to break the law - court doesn think this pamphlet t dangerous - solicitation requires a particular individual. 9. Comparing Shleifer and Quentin: Which rule is majority? Not clear. How dangerous does the solicitation seem? is a question that would need to be answer. 10. Justification for Punishing Solicitation See comment to MPC 5.02. One view: conduct of solicitor is not dangerous since between it and the commission of the crime that is his object is the resisting will of an independent moral agent.Opposite: solicitation is, if anything, more dangerous than a direct attempt, since it may give rise to the cooperation among criminals that is a special hazard. Solicitation may, indeed, be thought of as an attempt to conspire. GET REST OF SOLICITATION NOTES FOR SECOND PERIOD, MONDAY OCTOBER 18 (AFTER DLUGASH)
51 9. ACCOMPLICE LIABILITY (Buttorf, Wilcox, Gladstone, Huber) 1. Introduction In commission of each crime, people may be involved before, during or after. These people are parties to the crime. 1. Under CL classification parties to a felony 1. 1) principal in the first degree; 2) principal in 2nd degree; 3) accessory before the fact 2. distinction now gone - you are guilty of the underlying crime 3. 4) accessory after the fact: distinct category b/c not truly accomplice to the felony b/c only involved after the felony completed. Now those who were once under category 4 are parties who obstructed justice- lesser penalties. (1) Misprision of Felony: Have to not just not report, but do something affirmative to conceal 2. Principal in 1st degree: The criminal actor + Present. One who, with requisite mens rea, engages in the act (or omission) which causes criminal result. Can be more than one principal in 1st degree, but most always be at least one. Can be constructively present (leave poison later drunk by V). 3. Principal in 2nd degree: Helper + Present. Must be present at the commission of crime and aid, counsel, command, or encourage the principle 1st degree. May be fulfilled by constructive presence (standing watch, signals from a distance that V is coming, etc.), but they must be close enough to render aid if needed. 4. Accessory Before the Fact: Helper not Present. On who orders, counsels, encourages or otherwise aids and abets before the act who is not present at the crime. Quantity of aid and its proximity (in time) is immaterial. 5. Accessory After the Fact: Generally not treated as a party to the felony. Still a separate crime. Why? Crime is completed by the time they are involved. 2. MPC 2.06 Liability for Conduct of Another; Complicity 1. A person is guilty of an offense if it is committed by his own conduct or by the conduct of another person for which he is legally accountable, or both. 2. A person is legally accountable for the conduct of another person when: 1. acting with the kind of culpability that is sufficient for the commission of the offense, he causes an innocent or irresponsible person to engage in such conduct; or 2. he is made accountable for the conduct of such other person by the Code or by the law defining the offense; or 3. he is an accomplice of such other person in the commission of the offense 3. A person is an accomplice of another person in the commission of an offense if: 1. with the purpose of promoting or facilitating the commission of the offense, he (1) solicits such other person to commit it; or (2) agrees to aid in planning or attempt to aid in committing it [paraphrase]; or (3) having a legal duty to prevent the commission of the offense, fails to make
52 proper effort so to do [sources of duty to act; being an accomplice by omission]; or 2. his conduct is expressly declared by law to establish his complicity. [if legislator includes other types of conduct] When causing a particular result is an element of an offense, an accomplice in the conduct causing such result is an accomplice in the commission of that offense, if he acts with the kind of culpability, if any, with respect to that result that is sufficient for the commission of the offense. A person who is legally incapable.... Unless otherwise provided... 1. he is a V 2. the offense is so defined 3. he terminates (1) wholly deprives.. (2) gives timely warning... An accomplice may be convicted on proof... Three step process to determine AL: 1. Is D legally accountable for other person (e.g., does he cause an innocent actor; statute makes you legally accountable - vicarious liability); 2. Is D an accomplice; 3. Defines who is an accomplice (Must have 1) purpose - high mens rea (solicitation is sufficient; or agree or attempt to aid); 2) READ BOTTOM OF 725. Persons legally incapable of committing crime Under CL and MPC 2.06(5) people legally incapable of committing the offense can be convicted as accomplices. E.g.: in many states husbands cannot be convicted of raping their wives; but, if H hires A to rape W, H can be convicted as an accomplice. 1. Rejects Pinkerton Liability 2. Persons whose conduct inevitably incident to commission of the crime MPC 2.06(6) follows CL rule person is not an accomplice ... if the offense a is so defined that his conduct is inevitably incident to its commission.E.g., Prostitution requires two people, but only prostitute convicted; same for extortion. Court leaves decision whether to include inevitableactors to the legislator.
4.
5. 6.
7. 8.
9.
3. The extent of participation necessary 1. Amount of aid or encouragement necessary need not be substantial. No for but requirement. It is sufficient if it makes commission of the crime easier. But if it had no impact, then no accomplice liability. 2. Accomplice must intend that her actions aid or encourage the principal. No liability if actor misinterprets the words of the accomplice 3. Agreeing and attempting to aid In some ways MPC goes beyond CL in 2.06(3). Even attempts to aid are punishable under MPC and CL if it acted to encourage
53 the actor to commit the crime. But, under CL, if the attempt is in the form of a communication which ends up not being received by the person who committed the crime, the accompliceis not guilty. Under the MPC, they would be guilty. 4. Omissions as a basis for accomplice liability May serve as a basis for liability if requisite mens rea proved. 5. Relationship b/t accomplice liability and the principal guilt. At CL, before s s accomplice could be convicted, the principal had to have been convicted (if he died or escaped, the accomplice was scott-free). Created a loophole: Wily accomplice could convince someone immune from liability to commit the crime on their behalf. To remedy this: 1. Doctrine of innocent agency: adopted as MPC 2.06(2)(a)When someone uses an innocent agent (insane, young, duress, mistake) to do their act, they will be treated as the principal. 2. CL has now done away with necessity to convict principal before convicting an accessory. Principal can even be acquitted). And, accomplice can be convicted of higher degree crime than the principal. 3. But remember, one cannot be convicted as an accomplice to a non-criminal act. 4. SEE CHART: Evolution of Crime. 6. US v. Buttorff (1978) Extent of participation necessary 1. D held meetings during training sessions for company and recommended that employees not file income tax returns. 2. Standard: Affirmative participation which at least encourgages the perpetrator. 3. Holding: Convicted of income tax evasion on the theory of accomplice liability. 4. Rule: Speech is not protected by 1st amendment when it incites imminent criminal conduct. An accomplice may be convicted if their participation was merely through speech that incites imminent lawless activity because such speech is not protected under the first amendment.
7. Wilcox v. Jeffrey .(Eng. 1951) Professor of Saxophone 1. Wilcox publicizes Coleman Hawkinsvisit to England in his Jazz magazine, even though Hawkins cannot legally play in England. 2. RULE: Knowledge plus minimal assistance = accomplice liability 3. At Common Law: Must convict principal to convict accomplice. 4. Here Wilcox is convicted and Coleman Hawkins is not. 4. State of mind Necessary 1. Mens Rea 1. Majority: Requires D purposely assist: intent to aid or encourage the principal crime. (Hicks; Gladstone) s
54 2. Minority: Knowledge sufficient for accomplice liability only where D knowingly assisted a serious crime and or deprived very critical aid. 3. Punishing Knowing Facilitation as a Separate Crime. NY: Create another crime for knowing assistance. 4. Accomplice Liability for Crimes Requiring Recklessness or Negligence. Purposefully engaging in reckless/negligent conduct. 5. The Natural and Probable Consequence Doctrine. CL responsible for all the natural and probable consequences that would result from the act. MPC: only responsible for acts which you intended. 6. MPC 2.06(4) Abbott case. Intentionally engaging in an act which is negligent or reckless allows you to be convicted of 2. State v. Gladstone: Gladstone had conversation with an undercover agent Thompson. Gladstone said he didn have enough marijuana but suggested t Thompson go see Kent who might be able to sell - gave Thompson a map. Gladstone convicted of unlawful sale of marijuana - had helped Kent. for But Gladstone assistance, agent wouldn have been able to purchase. s t 1. Jury found guilty. Court: remands and dismisses b/c Gladstone lacked purpose that Thompson succeed; only had knowledge of Kent marijuana. s Knowledge alone insufficient to prove accomplice liability 5. Withdrawal 1. Once aid given w/ requisite mens rea, are guilty via accomplice unless you: 1. provide timely reporting to the police; 2. completely withdrawal aid and renounce encouragement. Can be guilty if t you done these things and the crime happens. Diff. than conspiracy, ve attempt, b/c you don have to stop the crime. Why? Accomplice not as t substantial as being a principal actor. 2. Commonwealth v. Huber: Friends tell Huber they want to rob a bank; ask for his gun. he gives it to them along with naptha. He says he doesn want to go, but is t guilty. Doesn have purpose, but has some intent. Withdrawal defense not t acceptable. 3. The Motivation for Withdrawing Fear of apprehension v. moral realization. 6. Accessory After the Fact 1. Three elements: 1. a felony has been committed 2. D knows the felon committed the crime 3. D aids the felon for the purpose of hindering his apprehension by the authorities
55 2. Compounding Crime Take money not to report. 3. Misprision of Felony Does exist. 18 U.S.C. 4 Misprision of felony. Have to not just not report, but must do something affirmative to conceal (e.g., take $).
56
57 10. CONSPIRACY (like attempt, this punishes inchoate activity) 1. Introduction 1. Elements 1. CL: An agreement to do harm 2. Modern CL (1) An agreement b/t 2 or more people (only D has to have intent) (2) Overt act in furtherance of the agreement (majority) (3) Purpose to promote the unlawful act (not nec. criminal) that is the conspiracy (4) Knowledge that unlawful act is indeed unlawful (req. in minority of jurisdictions) 2. Justification for Conspiracy Laws Group dangerrational. Division of labor means more elaborate and ambitious goals and greater likelihood of success. Also, if one decides to opt out, plan may still go through. Seems to evidence antisocial tendency. Cf. large number of participants means harder to keep secret; greater likelihood they will convince each other not to do it. 3. Prosecutorial Advantages of Conspiracy 1. Crim. liability attaches at earlier point in time for conspiracy than for substantive crimes or even attempt. 2. Charging w/ conspiracy offers many procedural advantages, including: 3. Co-conspirator hearsay exception: Normally, out-of-court statement offered to prove truth of its content inadmissable as hearsay evidence; but, law of evidence has exception that statements made by D co-conspirator during s course of conspiracy is admissible. 4. Venue: All co-conspirators may be prosecuted where they conspired or where any act took place; prosecutors given latitude to choose forum they think most likely to convict. 5. Joint Trial of Defendants: Option of joint trial expands venue choices. May also taint D in eyes of jury by assoc. her w/ less savory co-conspirators. 6. Not the difficulties possible in complex cases: how can jury sift through all the charges, the evidence of co-conspirators, witnesses, etc. 7. The Statute of Limitations: Clock doesn start running until conspiracy has t ended, not when it began. 4. The agreement 1. CL, actrequirement of conspiracy was act of agreeing. 2. most states require overt act in addition 3. U.S. v. Conover. 698 Lime mine in FL used for road to power plant. Conspiracy to defraud (maybe violated public bidding process by giving K to
58 his friend) U.S. Gov (Hard to understand where the conspiracy was). t. (1) Doesn have to be any damage to convict on conspiracy, just an t agreement (doesn have to be an explicit) to defraud with some overt act. t (2) 4. Proving the existence of an Agreement (1) Modern require an overt act in addition to the agreement. Agreement in conspiracy less rigid than contract theory - no meeting of the minds necessary. All needed is mutual purpose. (2) Agreement may be proven by circumstantial, rather than direct, evidence. (1) State v. Kemp: is sufficient if there be concert of action, all the It parties working together understandingly, with a single design... (2) Williams p. 700 Police conspiracy. when all strands of separate acts are considered together, and their interrelations and connections are considered, they form a web upon which a jury can find conspiracy 5. Object of conspiracy (1) CL: objective did not have to be criminal. Criminal liability imposed for conspiring to commit a tort or an immoral act. (2) Modern: conspiracy must be for a crime, although some statutes are loosely worded such that non-criminal acts could be covered (e.g., Cal.Pen.Code 182(a)(5) which allows for criminal conspiracy for act any injurious to the public health, to public morals, or to pervert or obstruct justice, or the due administration of the laws.But U.S.S.Ct. review of cases involving such statues has caused them to be interpreted restrictively. People are found guilty, though. 6. Parties to the Agreement (1) CL: at least two parties required. Thus, if D agrees w/ police informant to commit unlawful act, cannot be convicted of conspiracy (informant didn t actually agree to the crime). See also old CL doctrine - now rejected - that husband and wife couldn form conspiracy b/c marriage united them into t one person. (2) MPC 5.03(a) (majority) Unilateral approach: guilty of conspiracy if D agreesw/ one or more persons to effectuate crime. Focuses on individual culpability rather than conduct of group as whole. Focuses s on conspiracy as an inchoate crime, punishing it as an ind. attempt to commit a crime by forming an illegal combination. Turns conspiracy, in a sense, into a form of attempt. (Cf. CL bilateral approach that sees s conspiracy as group crime, punishing actual formation of illegal combination). 7. Conspiracy as separate crime from target offense
59 (1) CL Purpose of conspiracy liability: to punish inchoate crim. behavior. Therefore, merged into liability for completed crimes once object of conspiracy achieved. Couldn be convicted of both. t (2) Modern Conspiracy considered separate crime, regardless of whether target offense completed and cumulative punishment possible (S.Ct. decision 1961). (3) MPC 1.07(1)(b) prohibits cumulative sentencing unless conspiracy has criminal objectives that transcend any particular offenses that have been committed in pursuance of its goals. (4) MPC 5.03, comment at 390: Minority of jurisdictions adopted this MPC approach; nonetheless, few criminals get cum. sentencing. But sometimes penalties for conspiracy greater than those of the actual crime, so will try to bootstrapcriminal liability to more serious levels. 8. The Wharton Rule (1) Criminal acts that can be done alone not conspiracy (dueling, adultery, t incest, gambling, bribes). Seeks to avoid conspiracy liability that would be inevitable for such crimes: Where it is impossible under any circ. to commit the subs. offense w/o coop. action, the prel. agreement b/t the same parties to commit offense is not an indictable conspiracy. (2) MPC rejects wharton: that an offense inevitably requires concert is no reason to immunize crim. preparation to commit it. Doesn allow pros. t for either party. And, only supportable reason for such a rule (preventing cumulative punishment) is avoided by the code anyway. 5. The Requisite Mens Rea 1. Mens rea as to the target offense Conspiracy requires two-fold mens rea: both to (1) enter into an agreement and (2) to further the agreement unlawful objective. s 2. MPC 5.03(1) (Majority): require proof of purpose to promote or facilitate commission of underlying crime. (1) Lauria 704. Runs message service that is used by call girls. D knew this. Conviction reversed. Knowledge sufficient only where object of conspiracy is serious felony; purpose required where the object is a misdemeanor. Did not appear that D had a substantial stakein the crime (1) Courts have not followed Lauria. Should one who knowingly aids a conspiracy be guilty? Or do they need, as the majority requires, intent? What about someone who sells gun manufacturers? Conspiracy b/c they know their products are used for illegal purposes? No explicit agreement necessary.
60 (2) When goods are dangerous or have no legitimate purpose do not need requisite mens rea. 3. Mens rea as to Attendant Circumstances See L. Hand analogy: s While one may, for instance, be guilty of running past a traffic light of whose existence one is ignorant, one cannot be guilty of conspiring to run past such light, for one cannot agree to run past a light unless one supposes that there is a light to run past. (1) But compare: U.S. v. Feola: D conspired to assault undercover fed. officer (think he is a drug dealer). Did not need knowledge that he was assaulting fed. officer, even though crime of assaulting fed. officer required knowledge that he was a fed. officer. Conspiracy charge did not require knowledge of V identity (is an attendant circumstance). s 4. The Corrupt MotiveRequirement MUST HAVE bad motive. (1) Powell doctrine: dist. conspiracy from most crimes in that ignorance of the law is an excuse. Persons who agree to do an act innocent in itself, in good faith and without the use of criminal means, are not converted into conspirators, because it turns out that the contemplated act was prohibited by statute. (2) Must conspirators know their contemplated acts are illegal, or does it suffice that the objectives are bad or corrupt ? (3) MPC (and most states) rejects the corrupt motive requirement. CA and MA do still require corrupt motive in certain cases: (1) CA Specific intent to violate the law 1) People v. Marsh. D couldn be convicted of conspiring to practice t medicine w/o licence unless they knew license was req -- there d is no conspiracy absent a specific intent to violate the law. (2) Note: issue is not settled: 1998, S.Ct.US. Bryan: you must show intent to violate the law. 6. Overt Act Requirement (Yates v. U.S.) Skipped. 1. CL did not require overt act - only agreement. 2. Most states: overt act by one member of conspiracy enough to consummate consp. for all parties. [SEE SUPP. p. 59] Generally, need not be beyond act mere preparationas required for attempt. May simply be any act in furtherance of conspiracy ill. obj. May be insubstantial. Reasons to require s overt act: (1) provide opportunity for conspirators to reconsider, terminate the agreement (a locus poenitentiae) (2) verify existence of the conspiracy. 3. Exceptions to the Minimalist Approach Some statutes require substantial overt acts. E.g., in Ohio: substantial= such a character as to manifest a of
61 purpose... 4. Nature of overt act (1) overt act performed by any member of conspiracy sufficient to consummate the conspiracy as to all parties to the agreement (Robinson) (2) little actsuffices (Hyde) (But see OH and MI) any (3) need not be unlawful (1) Yates 713 D convicted of conspiring to overthrow gov by organizing t and being actively involved in communist party (2) Donner even constitutionally protected speech can be a sufficient overt act (3) Gerson omissions can qualify as overt acts (D omit assets from listing in bankruptcy) 2. The Scope of Conspiracy Liability Often diff. to determine if there are several small conspiracies or a single large one. Multi-party conspiracies, when charted, resemble a wheel or chain or combo. 1. Chain: (generally involve smuggling and dist. of illicit drugs). 1. Each party/link has specialized function. 2. B/c of inherent interdependence, relatively easy to prove they were working together. 3. (U.S. v. Bruno- Skipped) 4. Inferring the existence of a chain. Usually, existence of chain shown by a shared community of interest - each linked worked together to achieve same goal, were aware they were working together, knew success/failure depended on each other. Large sales can infer knowledge of chain b/c of necessity of resellers). 5. Including final purchaser in chain. If conspiracy not possible w/o final purchaser, and D knew this, then they can be included. 2. Wheel: Subsidiary parties connected to the main party. Usually Ds in conspiracy want scope defined as narrowly as possible. 1. Often argue that there were several small conspiracies: (1) avoids pinkerton doctrine that holds all parties liable for any crime committed by another; (2) procedural advantages: co-conspirator hearsay exception, option of trying all co-cons. in single trial, choice of venue. (3) In wheel conspiracies, though, Ds may want few parties b/c then subject to fewer conspiracy charges. 2. (Kotteakos v. U.S.- Skipped) 3. More diff. to prove than chain conspiracies. Succ./failure of one spoke often independent of succ./failure of the others - therefore, harder to demonstrate community of interest b/c harder to show that spokes were aware of each other
62 4. 5. 6. 7. and a shared common goal. Usually proved by a common goal. Conspirators want separate trial. Guy at the center wants a single conspiracy - only one charge. Consider 9th circuit: Cannella 721. Army officer accepted bribes and, although various people who bribed him (spokes) were aware of each other, they were considered unconnected b/c each had their own goal.
3. MPC approach to Scope of Conspiracy 5.03(2) Co-conspirators include not only those w/ whom D directly agreed, but those who previously agreed with the co-conspirator (provided D aware of the previous agreement and that agreement had same objective). Don need to know the other parties at all. t 4. One agreement to commit multiple crimes Is an agreement to commit several crimes one or several conspiracies? U.S. S.Ct in Braverman v. U.S.(bootleg operation) said one conspiracy for several crimes: single agreement is the The prohibited conspiracy, and however diverse its objects it violates but a single statute.But single conspiracy may violate two separate conspiracy statutes. 5. MPC approach to agreements to commit multiple crimes 5.03(3) Mirrors Braverman but is bit broader by extending conspiracy beyond the single agreement to include any continuos conspiratorial relationship 6. Liability for acts of co-consipirators 1. Pinkerton Liability (modern CL rule) (1) Definition: Conspirator liable for all offenses committed by co-conspirator if (1) act is in furtherance of conspiracy; (2) within scope of original project; or (3) if the act was reasonably foreseeable as a necessary or natural consequence of the unlawful agreement. (4) Must satisfy one of these elements. (5) D does not have to have contemplated the offense involved. (2) Pinkerton v. U.S.. Daniel did not w/draw from conspiracy w/ Brother. D in jail when bro committed crime. long as partnership in crime As continues, the partners act for each other in carrying it forward.Guilty. (3) Allows you to sweep in all people from the conspiracy even if they had no mens rea for particular crimes done by other conspirator. Allows for prosecution of both substantive crimes and conspiracy. Critical to determine when each D joined and quit a conspiracy. 2. MPC 2.06(5)(a): Rejects Pinkerton liability. Unfair to hold all members of a
63 conspiracy equally liable. (1) Conspirators only autom. liable for crime of conspiracy. Code approach s punishes masterminds more severely than little guys. Note: Distinction b/t being an accomplice and being a conspirator to a completed crime is subtle when crime conspired to is the one actual committed. But there is a difference. Under Pinkerton, conspirator may be held liable for conspiracy for a crime done by co-cons. (whom he didn know) to which he did not t agree. Here, clearly could not be convicted as an accomplice b/c did nothing to assist the principal. 7. Withdrawal: Cannot withdrawal from conspiracy, only to subsequent crimes (renunciation) (1) Pinkerton liability ends upon withdrawal and withdrawal also starts statute of limitations for crime of conspiracy. (2) In CA: tell all members that you are removing all aid (3) Requirements to effectively withdrawal (1) need to commit affirmative act (Heckman) (2) that notifies co-conspirators that he is withdrawing (Loser) 1) Gysom Co. 726 under fed. law, conspirator may withdrawal by acting inconsistently w/ objectives of conspiracy in a way that should come to attn. of other conspirators (3) MPC 5.03(7)(c) 1) a conspirator may w/draw either by informing every member, or by telling police of existence of conspiracy and her part in it 2. Renunciation (1) CL: conspiracy couldn be renounced once completed t (2) MPC 5.03(6) (majority) renunciation is complete defense to conspiracy (3) Sisselman. D convicted of conspiracy to hurt V. D wanted to use renunciation defense. Ct orders new trial. Renunciation doesn negate t commission of conspiracy, but only offsets those guilty of conspiracy w/ an incentive to take steps to prevent the object of the substantive crime, in exchange for which D is excused from liability (1) If you do everything you can to thwart the crime, you are not guilty by way of renunciation. (2) Distinctions b/t renunciation and withdrawal. 1) Withdrawal (simply saying m out) is not a complete defense to I conspiracy (you will be guilty of the foreseeable consequences of the ultimate crime once completed, and can be charged with the conspiracy); 2) Renunciation (which also requires substantial effort to thwart the
64 crime) is - gets you out of future consequences.
65
66 11. THEFT (wrongful acquisition of property; socialists argue property is theft Note that ) consentis a defense to theft. 1. Introduction Personal acquisition of property venerated. See Louis b. Schwartz (exHastings Prof.): In a commercial society no clear line can be drawn b/t greedy antisocial acquisitive behavior and highly regarded aggressive entrepeneurial activity. Also, illegal acquisitive conduct need not be criminal: civil penalties such as tort liability, private institutional sanctions can be effective forms of deterrence and punishment. common law crime of larceny differs from such a crime as The homicide in that it shades off on every side into the region of mere tort.Area where public prosecutor most important - V can bring their own charges, otherwise s t everyone on wrong side of deal would feel cheated. 2. Larceny 1. Elements, History, Definition of property that can be stolen (Larceny is root of all modern property crimes) [if exam question on theft only address the one element that may or may not be satisfied - no need to address them all] 1. CL theft requires following elements: (1) trespassory (wrongful) (2) taking (caption) and (3) carrying away (asportation) of the (4) personal property (goods/chattel) of (5) another [ possession of another /title - ownership v. possession rights] (6) with the intent to deprive [7] permanently (useful life, etc.). (1) note that many of these elements are no longer required to prove theft. Some jurisdictions even expand the elements (ie. new intent requirements). 2. Along w/ embezzlement and pretense, larceny constitutes the traditional theftcrimes. 3. First came robbery (taking of property by force). Crim law dev. to cover all takings of property where no force used. Capitalism and commercial revolution further influenced expansion and growth of theft crimes. 4. What larceny crimes protect Wealth; social order; sense of security; established order of community; property interests; proper allocation of each item of property enjoys the full concern of the community. 5. Nature of property: At CL was restricted to Tangible objects that could be moved. (1) Use of personal property was not covered by CL larceny laws. (2) Real property At CL was not larceny to take and carry away in one continuous act anything adhering to the soil. Modern: statutes often now make it a larceny to take items adhering to property. (3) Services At CL larceny did not cover use of labor or services of another as such propertywas not capable of asportation. Modern statutes do make it a theft to steal services or labor. Lund v. Commonwealth Geek PhD statistics candidate. Computer time and services or
67 illegal use of a computer can not be considered goods or chattel and are not subject to prosecution as larceny. (4) Utilities Generally considered tangible for purposes of larceny. Is property capable of being appropriated? (5) Animals CL: domestic animals covered by larceny, while animals of base nature (cat, dog) not. Now, all animals in possession are covered. (6) Intangibles CL: Pers. prop. of symbolic value (bonds, checks, promissory notes) not covered. Modern statutes do cover these. (7) Value Only minimal value is required. (But when concerning lost mislaid property, we feel there is a higher duty to return property of higher value; although this is not embodied in law) 6. MPC 223(6) (see p. 957): definition of Property. Very expansive: Anything of valueand only minimal value required (but property w/ no fair-market value not covered; includes a list (not exhaustive) although in some jurisdictions if property has value to the owner may be covered) 7. Grand v. Petty Larceny Distinguished by Monetary value to ensure each crime carry a punishment w/ sufficient deterrent value. Cf. English law that makes no monetary distinctions. 8. Economic theorist analysis Criminal law defends not property at large, but certain kinds of highly unevenly distributed property. But see Posner: Criminal law is designed primarily for the nonaffluent; the affluent are kept in line, for the most part, by tort law.But then compare J.L. Coleman: economic analysis of crime ... has no place for the moral sentiments and virtues appropriate to matters of crime and punishment; guilt, shame, remorse, forgiveness and mercy... A purely ec. theory can only impoverish... Oxford v. Moss England, 1976. D-Moss stole exam answer sheets from D-Oxford U. Alleged to have permanently deprived University, but P concedes D never intended to keep the paper itself. Can confidential information fall w/in meaning of theft? Must ask question what is property: under the statute includes things in action and other intangibles. Court holding directly contradicts rule b/c it says the intangible information on the paper can not be considered property and, thus, not stolen. Judge seems to be saying cheating on exam is not criminal - purely a political interpretation (is not analogous to trade secrets). Majority view: academic cheating not a crime, even though it seems to fit the definition of the statute. 9. Cal.Pen.Code 499c, 502 Trade secrets, theft, solicitation or bribery to acquire; punsihment; defenses 10. Should Information be protected by theft statutes? Traditionally, information, including trade secrets, was not covered by larceny statutes. Now some kinds of info. are covered. Some criticize inclusion of information into property: defines a concept of property that strikes directly at the citizenry s customary use [of information] rights.... Tension of such crime w/ free society. In informationoriented economy is it appropriate to protect trade
68 secrets through criminal law? Would criminalizing the theft of trade secrets intimidate employees from moving on to another company in the same industry? (1) DEA agent takes info. off DEA computer of who government informers are and gives it to former DEA agent who sells it to someone who is actually a DEA informant. Info. is definitely thing of value to the public so there was a taking. (M.E. Tigar) (2) Procter and Gamble. Statute made whistle-blowing a crime. P&G asked police to investigate. Henry v. State Ga [1900]. D rent out a room in a house and gave the owner his bike and a suit as deposit. Kept the articles in his room and used the bike. After 3 weeks, defaulted on rent and left. When left he snuck back in and took the articles and sold bicycle. Landlord sued for theft. D contends they were his property me civilly (for the rent), and I pay sue ll you back.Property in the hands of a bailee may be stolen by the general owner. 11. Ownership v. Possession Owner may commit larceny by taking prop. from someone w/ a superior right to possession. Larceny is intended to protect the right of possession, not simply ownership. 12. Stealing Stolen Property You can steal from a thief. Included in larceny. Theft of illegal slot machines in WA. Illegal property can also be stolen. 13. Joint and Community Property CL: partner cannot be guilty of stealing from a partnership since stolen property is not property of another.People v. Clayton CO 1986: Interpretation of the partnership agreement is best left to a civil court or to arbitration.Dissent: Partner should not be immune from prosecution for theft because the property he steals belongs to the partnership.Some jurisd.: partnership is a legal entity satisfying the of anotherrequirement - criminal theft possible. Spouse Property: CL didn s t recognize larceny - now does (e.g., NY Married Woman Act that destroyed s old fiction of legal unity; wife becomes anotherfor prop. purposes. MPC 223.0(7): rejects CL approach: property includes property in which any person other than the actor has an interest which the actor is not privileged to infringe, regardless of the fact that the actor also has an interest in the property. 2. Asportation and Caption Requirements 1. Asportation Can have caption w/o asportation. Only some movement required; hair breadth. a s 2. Taking Can have asportation w/o taking. Must have actual possession (cf. CA case of 1888 where thief who tried to steal a coat but it was attached by a wire, so he never possessedit). Shoplifter her returns items at storekeeper request: as long as a person knowingly obtains or exerts control s over certain goods w/ purpose to deprive, even w/o attempting to remove goods from premises, can be convicted of theft. 3. Lots of play room here for prosecutors and judges to find activities criminal.
69 State v. Carswell NC 1978. Hotel air conditioner moved by D off of windowsill 4-6 inches towards door. Larceny upheld b/c bare removal from the place in which he found A the goods, though the thief does not quite make off with them, is a sufficient asportation.Thief also had the goods in his possession - even if only for an instant when he moved it. 4. MPC 223.2(1) - No asportation Larceny includes theft where unlawfully takes or exercises control.Eliminates distinction b/t completed theft and attempt based on criminologically insignificant fact of slight movement of the object.Many states adopt this. Some argue against this b/c asportation is a precise test differentiating an attempt from a completed crime. 5. Liability w/o asportation even w/o asportation and caption still liable for attempted larceny if actor goes beyond mere preparation. 3. Extensions of Larceny (beyond Old CL concept of larceny - extensions by courts) 1. Lost or mislaid property Brooks v. State OH 1875. D found $200 roll of bills in mud in street. Had been lost weeks 3 earlierby Newton. Spent part of money and gave some away. Made no attempt to find owner. Sold one dirty dollar to co-worker. All elements of theft are met here (but there is an issue that Newton had relinquished possession). Court has to stretch that there was the taking of another: When person finds lost goods and believes owner can be found (Guilty the moment D has intent to steal at the instant he takes), is larceny. However, finder is not bound to use diligence or to make pains to search for the owner. Dissent: contends property was mislaid, not abandoned; that D was morally bound to try to find the owner does not mean he should be criminally liable. (1) Larceny of Lost Property CL: In add. to 6 elements of larceny, requires following elements to satisfy trespassorytaking: (1) a clue that the owner can reasonably be found at the time the prop. is taken; (2) the intent to deprive permanently must be present at the time prop. taken. (2) MPC 223.5 Theft of property Lost, Mislaid, or Delivered by Mistake A person who comes into control of prop. of another that he knows to have been lost, mislaid, or delivered under a mistake as to the nature or amount of the property or the identity of the recipient is guilty of theft if, w/ purp. to deprive owner thereof, he fails to take reasonable measures to restore prop. to a person entitled to have it. [Doesn define reasonable step, but t clearly must be tied to value; Step should not cost more than the item is worth; Finder has duty to act: reasonable steps are up to jury to decide; safest thing to do under MPC is to give it to the authorities]. See Fletcher article: improper keeping should not be included in theft. Is a s different then larceny. Brooks didn really take money from another. t
70 (1) Thus, MPC permits conviction even when original taking was w/o intent to deprive owner. Seems to wipe out CL distinctions on criminal liability for failure to return lost property by expanding criminality. Constructive possession Larceny first extended to mislaidproperty b/c property was considered under constructive possession of the true owner. Extension to lost property came later. Very fact specific. Clue to ownership May depend on uniqueness of item and where found. Continuous taking Taking continues for a while, then as soon as you develop intent, is a taken. Does not apply to mislaid property or mistaken delivery. Intent must be there at the time of possession. Pretty arbitrary. Hypos: (1) A finds Pendant w/ B name on it; decides to keep, then s changes mind and tries to find B to return pendant. Under CL is guilty of Larceny b/c had a reasonable clue and intent to deprive at the time of taking. However, under MPC 223(1), A avoids larceny by taking reasonable measures to return it even if had intent to deprive at time of taking. (2) When A finds pendant decides to find B, true owner. Then decides to keep it. Under CL A not guilty b/c did not have intent to steal at time he found it. However, under MPC is guilty b/c failed to take reasonable measures to restore prop. to true owner. (3) Metamorphosis of Larceny See Prof. Fletcher analysis (493-5) and s disappointment at expansion of larceny to include lost property. Cf. L.L. Weinreb: prefers increased criminalization of prop. crimes. Recycling value of giving a defense to finders: prevents lost/misplaced property from being destroyed.
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(8)
2. Mistaken delivery U.S. v. Rogers 4th Cir. 1961. D went to deposit brother paycheck for $117. Teller misread the s date as the amount of the check ($1,206.59). D asked for $80 to be deposited, rest cash. Received $1,126 in cash. When a transferee acts under a unilateral mistake of fact, his delivery of goods or chattel may be ineffective to transfer title or his right to possession. Roger initial defense: I didn get the money. On appeal, even if I got it, not theft. D s t contends mistaken delivery not covered by classic CL theft. Court rejects: Under Cl, mistaken delivery has been considered theft, even though without intent. Ct. Remanded b/c of bad jury instruction: didn give elements of offense: 1) D must know of mistake at t moment he received money; 2) took it from bank w/ intent to convert it. Ct. concedes evidence supports these, but that jury not properly instructed. If the transferee, knowing of the t s mistake, receives the goods w/ intention of appropriating them, his receipt or and removal is trespass and is larceny. (1) CL: Elements necessary: mistake as to nature of amount at time of taking; 2) intent to deprive permanently at time of taking. (2) Point of delivery: may depend on time of discovery of goods, not simply their receipt. Often courts have looked at whether property was considered a container.Best case for Rogers: Cooper v. Commonwealth; Worst
71 case Robinson. (3) MPC Person may be guilty of larceny even if intent to deprive does not exist at the time of taking, but develops later. Precise timing of when the mistake is discovered or when intent to deprive permanently is formed is no longer critical. (4) Distinguishing mistake of property and mistake of value Not larceny when both parties know what they are getting but one makes a mistake as to the value of what he is buying or selling. B sells painting to A for $5. A knows its a priceless Picasso. Larceny? See baseball card example p. 501. Boy gets a card worth $1200 for $12. What if store had bought it for $12? Is that unfair. Tough luck! Mistakes in value not theft. 3. Larceny by Trick Wrongful possession (extension; no longer wrongful taking). Obtaining the possession of personal property (not title) of another by deception, artifice, fraud or force, with the intent on the part of the person obtaining to convert it to his own use and permanently to deprive the owner of his property. Possession is gained by consent that is induced by deceit. Is distinct from conventional larceny b/c V freely gives property to D- no snatching . State v. Robington Conn. 1950. Lady (Robington) shopping for Chrysler is given one by D on condition that she return it the next day or pay for it. She never did. She never had intent to pay. Dealer claims still owned b/c still had title; she said she couldn steal b/c if he t still has title then she hasn stolen anyone property. Not covered under traditional t s larceny. 4. False pretenses Title transferred and still a crime. Covered by modern statutes, not CL. Compared w/ by trick and other larceny crimes: Involves transfer of title. Crime of false pretenses may obviate larceny because D convinces V to give title (larceny requires the taking to be trespassory, and this cannot be present if title is given over). Title is an abstract concept (only relating to cars and such): you can have my thing, but I still have right to ownership by retaining title. (1) Many states impose same penalties for crimes of Larceny by trick and False pretenses. (2) See Hypos: A gives luggage to B who says I pay you in a week. ll (3) See Supplement. 4. Specific Intent: deprive permanently the property of another To People v. Kunkin Ca. 1973. [NOT A THEFT CASE (Receipt of stolen property)] Free-press type Newspaper (Kunkin was owner/editor) obtained list of undercover narcotics agents from mail clerk at Attorney General office. Did the mail clerk, Reznick, obtain the list s illegally (yes, all elements satisfied; although they struggled w/ intent to deprive perm. (although could look at intent to use so no longer valuable to AG), and did the newspaper know that it was stolen (no). Larceny requires intent to permanently deprive. Doesn t appear Reznick had this intent - always insisted to newspaper that he get it back. In trial
72 said he removedit after being asked if he stole it. However, Reznick had stopped working for Att. Gen. at time he gave it, so appears to have intent to steal - guilty as charged (theft by larceny). Now that it established list stole, court asks if Ds knew such. Ds did not know Reznick no longer worked at Att. Gen. office and Reznick always told them he was giving it to them to look at only. Ds not guilty because they didn acquire t the property with knowledge that it was stolen. But the nature of the material may indicate clearly stolen (ie., wilful blindness). Court concerned about free-speech rights few restraints on publication. 1. Receipt of stolen property Requires following elements: (1) Property was received, concealed and withheld by D; (2) such property had been stoled; (3) accused knew the property had been stolen 2. What if Reznick had been guilty of theft by embezzlement (in many states, intent to deprive permanently not an element to embezzlement)? Ds would only have to know that the property was embezzled, and knowledge of Reznick intent to deprive permanently would not have been required. s 3. Permanently the property of anotherCL: Permanently has been variously defined: (1) For a time relative to the property useful life. I return it once its worn s ll out. (2) Exposing the property to risk such that its return could be impossible. Taking a horse and abandoning it 12 miles hoping it would return (which it did) is theft b/c hope not well-founded. (3) Placing of some condition upon the property return which is s unacceptable. RANSOM. See State v. Hauptmann (1935): the Lindbergh baby. D committed larceny by taking the nightdress and making its return conditional on payment for the baby return. Court thus able to uphold s murder conviction in the commission of a larceny (and therefor burglary, and impose capital punishment for felony murder). 4. Claim of Right ON LAST YEAR EXAM. Suppose D takes property to S collect on a debt (or any other reason she feels she has right to the property). Here, there is no intent to permanently deprive - no larceny. See Roark v. State Ind. 1955. Ds loaned woman $5 who offered repayment in form of 3 bags of wheat. Woman failed to appear, so Ds went to the farm and began sacking. Tenant of farm was unaware of the agreement and shot both critically em injuring them. Ds not found guilty of theft because had a bona fide claim of right - the wheat was their property. Claim of Honest beliefthat you have a right, and is your belief reasonable. An unreasonable claim of right is still a defense. Some courts contend, in contrast, that there must be a good faith belief, and w/o it you could be guilty. More important in England than here. Here, only element of mens rea is intent to deprive property of another permanently; in England must also prove that D acted dishonestly(similar, but stronger than our dishonest defenst.
73 5. Hubcap case. D took hubcaps off car parked illegally in his lot. Not theft, b/c didn deprive permanently. t 6. Borrowing Not a theft (Is a defense), but where D actions are blatantly s larcenous, requisite intent may be inferred. (1) Intent to borrow is not sufficient for larceny even if the actual return is prevented by some unforeseen event (D borrowspainting from museum for weekend but he drops it and it is run over by bus) (2) Some states have laws that make temporary takings a misdemeanor. E.g., ridingstatutes. Ca. statutes make borrowing shopping carts a Joy misdemeanor. (3) Mut Saferite v. State OK 1939. Loss must be fault of borrower to create theft. 7. MPC follows intent to deprive permanently (1) Others, however, dispute this necessity. Glanville Williams. Temporary taking and usage is commonly considered stealing (theft). Indeed, no English dictionary defines stealing by reference to an intent to deprive permanently - all mentioned dishonest taking of another property. s (2) Should wrongful borrowing generally be criminalized. Mason v. State Ark. 1877. D and two others asked Dixon for beer (he ran a bar in his house). He was sleeping and refused. They took beer and two days later, before they believed they were detected, offered to pay $3 (they had also broken window) (even though the gallon they drank was worth 30 cents). Jury: were not found guilty of burglary but they were convicted of theft. No intent to deprive permanently when person gives or intends to give an equal or greater substitute for the fungible good they took. Rule applies to commercial goods -- stuff for sale. Philosophical question: Is this rule protecting more than mere possession.yes, the right of people to have property; businesses don care about the property, but the money for the t property. Duh, its normally theft if you intend to pay for something later. Weird that its in some jurisdictions. Also in MPC. Theory: Its a trivial theft, so we ll excuse it; no real bad intent either. 8. Intention to pay for taken goods One view: No intent to deprive permanently when person gives or intends to give an equal or greater substitute for the fungible good they took. Widely applied with respect to goods sold by merchants; less consensus otherwise b/c of differing concepts of fungible goods. (1) Other view: Some courts hold that if the property was not for sale, than intent to pay (or payment) is not a defense to larceny. Theft involves the taking of a specific thing and not the taking of an abstraction such as value .. Thus the intent to restore value to the owner while keeping the specific property taken does not preclude a theft conviction. (2) MPC 223.1(3)(c) Intent to pay is a defense only where the defendant
74 took property exposed for sale, intending to purchase and pay for it promptly, or reasonably believing that the owner, if present, would have consented. (3) What about shopper who jumps line at counter and leaves money? How about person who breaks into store and leaves money (note: burglary not possible w/o larceny) 3. Embezzlement The fraudulent appropriation of property by a person to whom it has been entrusted. Fraudulent intent an essential element. People v. Talbot Ca. 1934. Officers of Oil company drew checks out to themselves. Paid for things like yachts (Talbot took $186k - before crash, rich; after crash, couldn pay back t this loan Did so openly - no concealment; the debts were kept on the books (so ). they pay them off) -- written in as advances; common practice. But, the checks were d not authorized by board of directors and, clearly, nor were they used for the company. D argues that lack of concealment shows no fraudulent intent. Court disagrees. Embezzlement may be present where appropriation is openly made (w/o concealment). An officer or agent of a corporation cannot take money of the corporation which is entrusted (use must be approved by board) to him, or which comes into his possession by virtue of his office or agency, and use it even temporarily for his personal benefit and avoid criminal responsibility by calling it a loan. This is a wrongful conversion - evinces fraudulent intent. 1. Cf. People v. Royce (p. 517): Took $10k, returned $8k, $2k not accounted for; no felonious intent shown. Here, they never asked for money back. In Talbot, he was asked to pay it back and couldn so are you only guilty if you can pay it back? t; t No. This case is not distinguishable -- both intended to pay back. Second you put check into your account, embezzlement occurs. 2. Elements 1. At CL, person entrusted with possession of another property could not be s convicted of larceny for misappropriating that property b/c of the absence of trespassory taking (also there is no intent to deprive permanently when you embezzle, as in CL Theft). 2. Modern Statutes: Fill in CL void by defining embezzlement as: (1) the s fraudulent (2) appropriation (3) of property (4) of another (5) by one who has been entrusted with possession. (1) for the purposes of this crime, fraudulent means: with the intent to deprive; you must also know that the property is not your own. Appropriation means using for purposes other than was intended. (2) Note: 3 elements for larceny that are not required for embezzlement: trespass, taking, carrying away. 3. History and development 1799: Joseph Baisely: bank teller slips money into pocket; not theft property was never that of the master (no longer that of the customer either). Society outraged: pass embezzlement law. 4. The limits of the criminal sanction Should criminal law apply to private bus. relationships? Theory: entire law of theft and embezzlement developed in
75 response to social, political, economic changes; modern business/ corporation necessitated expansion of criminal sanction into private business relationships. Embezzlement protects class interests. misappropriation between partners or A joint ventures might be the stuff of which civil law suits could be made, but the hired clerk defalcation was a matter for criminal prosecution, a hanging s matter.NICE! 5. Fraudulent Intent The intent to deprive property of another. Some require permanent while others only a temporary deprivation. Cf. larceny: substitution of equivalent property for property which has been embezzled is no defense even in jurisdictions requiring an intent to deprive permanently for embezzlement. 6. Practical considerations Embezzlement seriously under-reported (often handled internally). What is purpose of criminal law if it isn met out? t 7. Is embezzlement ambiguous? Audits to detect embezzlement could be politically motiviated. Should law of embezzlement require proof of a dishonest intent or an intent to deceive? 8. Who is the typical embezzler? In 1986 survey of banks: 26 yr-old white female w/ high school education earning less than $10k at an entry level position 9. Property of another 10. MPC Not adopted by most states. Expands concept of property of anotherfor crime of embezzlement (sort of brings in breach of contract): 1. 223.8: A person who purposely obtains property upon agreement, or subject to a known legal obligation, to make specified payment or other disposition, whether from such property, or its proceeds or from his own property to be reserved in equivalent amount, is guilty of theft if he deals with the property obtained as his own and fails to make the required payment or disposition. 11. Entrustment Refers to special legal relationship that must exist b/t appropriator and goods appropriated. Must be of special trust and confidence. Mere access to property not the same as actual entrustment. Warren: Has access to barrels; is theft, not embezzlement. 12. Cal.Pen.Code 484 Theft defined. Consolidation. When charged: Theft by means of.... 13. Claim of right defense If you honestly believed you were not taking without consent. 14. Should embezzlement be theft? 4. False Pretenses Obtaining title by lies. Filled the loophole left by crime of larceny (transfer of title means you can trespass on the person property. 1757. [Title to t s cash, transfers w/ possession.] Doesn matter whether title transfers, if it does, then t we call it FP. Protects suckers. 1. Elements 1) a misrepresentation by D (2) of a present or past material fact (3) w/ intent to defraud V; (4) the V relies on the misrepresentation, and (5) title is transferred by the victim. Chaplin v. U.S. 1946. Husband and wife said they were in the liquor business and they 1) d
76 purchase liquor stamps if Mcmullen (nurse; is conspiring to violate rationing laws of WWII) would advance them money ($1k) and that they would 2) pay her back. They had no intention of buying liquor stamps or returning the money. However, long-standing rule: pretense that the party would do an act that he did not mean to do was ruled by A all the judges not to be a false pretense... (courts do apply such a rule to cases of fraud and deceit) but there is a vast difference b/t subjecting a D to criminal penalties and providing for redress through civil actions. Old CL: False pretenses requires a false representation of a past or present fact. Pub. Policy arguments: business affairs would be materially encumbered by ever present threat of criminal law sanctions on a debtor who jury decided was mentally a cheat - could criminally punish someone who is merely unable to pay off their debts. ** Dissent (is maj. rule federally): false statement of future promise is a present fact, in civil cases (breach of contract); criminal law also is starting to adopt this. In plain words: no clearer case for false or fraudulent pretense than a borrower pretense that he intends to repay money that he actually doesn intend to s t repay. Danger of a counter suit prevents malicious prosecution discourages unfounded charges. 2. Hist. development Trespassory element of CL larceny limited its application. 3. Future Fact Misrepresentations of future fact gen. not covered under FP courts don want to criminalize every breach of promise. MPC 223.3 approach follows t Dissent of Chaplin: false promises included: alternative of excluding false the promises by rule of law presents the unattractive possibility of allowing the clever to evade liability for theft.But seems the criminal law is invading the area of contract law, where breaches are prosecutible under civil law. NJ: State v. Kaufmann: promise is not only an undertaking as to the future, but it is A necessarily also an assertion of an existing state of mind, a present intention to perform. Was it false when you said it, or only when the promise doesn come t true? 4. Opinions Expression of opinions ( Puffing for sale of goods not generally ) misrepresentation of fact. People always exaggerate their contribution to a product. 5. Material Facts Facts alleged to be misrepresented must be material to suffice for false pretenses. 6. Reliance V must have believed, no matter how slight, in defendant lie. W/o s such belief can have no reliance. Not FP if what D lied about could not have induced V reliance. But not: V reliance on misrepresentation does not have to s s be reasonable (it is the fool who needs the most protection). BOP is on P to show reliance, however. Jury may find misrepresentation so absurd that V could not possibly have relied. 7. Intent to Defraud D knew his misrepresentation was false, or knew she did not know whether it was true or false and nevertheless misrepresented it as true. 8. Duty of doing nothing (Omissions) Generally, affirmative act necessary for FP. (Conviction for FP reversed where D sold 6 bales of cotton w/o disclosing they had a mortgage on them). CL: only someone w/ fiduciary duties can be convicted
77 of FP. Under some circ., court may find positive duty to correct an obvious misapprehension held by another party. Modern trend expanding this approach. See U.S. v. Brown FL 1992: criminal conviction upheld where RE agents discouraged out-of-state purchasers from buying cheaper homes located near their development. 9. Hypos Concern is with lie, not with the supposed loss or gain of the victim. 10. Bad Checks A subspecies of FP, but most jurisd. have separate statutory crime. Most require only knowledge of insufficient funds, while some require actual intent to defraud, and most do not require anything actually be obtained from V. Offense is complete when, w/ intent to defraud, a person draws a check he knows to be worthless. 11. Does FP contradict the principle of caveat emptor (buyer beware)? Should it be punished as severely as larceny? 5. Theft: Consolidation of Property: Acquisition offenses Make all theft crimes theft.Common law crimes transformed from being crimes to being means of defining the overall crime of theft. Useful for prosecutors. 1. MPC 223 1. 2. Cal. Pen. Code 484
12.
ROBBERY 1. Robbery Theft by force or fear 1. Elements 1. CL: All as in larceny + (a) taking must be by force or by causing V to fear the poss. of imm. force; and (b) the taking must be from the person or from the immediate presence and control of the victim. 2. MPC: (1) A person is guilty of robbery if, in th course of committing a theft, he: (1) inflicts serious bodily injury upon another, or (2) threatens another with or purposely puts him in fear of immediate serious bodily injury, or (3) commits or threatens immediately to commit any felony of the first or second degree (2) An act shall be deemed the course of committing a theftif it occurs in in an attempt to commit theft or in flight after the attempt or commission. 2. Force No force where guy steals money from someone already dead (no chance to use force or cause fear). the power by which resistence is overcome. Mosk: Is Claim of right should not be an available defense to force or fear robbery overturns Buttler, bellow. 1. Constructive force Use of drugs etc. to render V helpless sufficient for robbery. But if V takes drug knowingly or vol. is no force. Kind of like
78 Kibbe (w/o death). 3. Robbery v. Larceny Do snatchingcases fall under larceny or robbery? Most say not robbery b/c V can offer resistence to force. D must actually t wrestthe object from V. Doctrine to mitigate penalty. Kind of nebulous distinction. 1. MPC 222.1 follows this approach: only infliction or threat of serious bodily injury can constitute robbery (unless action or threat is 1st or 2nd degree felony). People v. Butler CA 1967. Claim of right defense. D enters apartment of V-Anderson house to get back pay. Supposedly they have a s discussion. V hit on D; D says no. Chaos ensued; accidental shooting. Anderson died. Felony needed for Felony Murder. Jury found D intended to take money before he went over. Only affirmative defense against theft is Claim of right: whether he had honest belief he was entitled to the his wages (this negates the of anotherelement of theft; some say negates mens rea of theft). Court says this is an allowable defense here. T.Ct. failed to instruct this - remanded. 4. Putting in immediate fear Fear and force = alternate requirements for robbery. Some states: V doesn even have to have fear - ct. looks to objective standard (if t ordinary person would be scared under the circumstances); other states, subjective (V must have fear). 5. Threat to other persons or property Threat to V family, friend suff. MPC s 222.1(c): robbery includes takings when one commits or threatens immediately to commit any felony of the first or second degree. 6. From the Person or the Immediate Presence and Control of the Victim MPC does not require such proximity. 7. Armed (aggravated) Robbery While possessing a dangerous weapon. Is a distinction of degree w/ attendant punishment. 1. Dangerous weapon Design, purpose, etc. and capability for causing injury or death. e.g., german shepherd, hammer, shoe, concealed hairbrush (b/c V had seen D brandish a gun earlier). Courts have sought to narrow such absurdities with statutes saying: designed to be used for injuring, 2) under circumstances could be used for harm; 3) actually used to inflict harm. Cts. split over how to treat toy guns (objective v. subjective tests). 2. Unused concealed weapons Doesn have to be used or known by V. Fact t that D carried knife, although unknown to V sufficient. Mere possession indicates D willingness to use if necessary. s 3. Absence of weapon Announcing stickup w/ hand in jacket pocket. 8. Armed robbery under MPC No deadly weapon requirement: in the course of if committing the theft the actor attempts to kill anyone, or purposefully inflicts or attempt to inflict serious bodily injury. 9. Escape 10. Claim of Right 11. Reasonableness of the Claim Cal. attempted to limit Butler: must be a reasonable claim of right. Hendricks
79 2. Extortion Elements: 1) Threats for purposes of 2) obtaining money. No mens rea. State v. Harrington VT 1970. Harington is lawyer. Looking at a divorce case; decides to propose to adulterous husband that he could avoid trial by trying to extort money from abusive husband so that he doesn Set up deal in NH: Ms. Mazza will seduce husband. t. Wife takes photo. Lawyer shows photos to D and says, you can avoid trial if you just pay us. Seems like settling. But, isn because the legislature made this a crime (not covered t under CL). Must be a threat of damage or injury...... 1. Introduction Extremely vague. Why isn it just free-market trading. Don t t misuse private information. 2. CL Was a misdemeanor (not recognized as a crime); solely concerned official misconduct (the corrupt collection of an unlawful fee by a public official under color of office. 3. Created solely by statute 4. Threat Threats to injure; threats to accuse V of a crime; threat to expose or impute something that would disgrace V; threat to publish defamatory matter, injure business reputation; slight personal character; injure family members or relatives; threats to injure anyone. 5. Property 6. Dist. Extortion from Robbery Extortion is threat to use future force; robbery threat of immediate force. 7. Dist. Extortion from Compounding 8. Claim of Right Not recognized as a defense. The law is criminalizing the means by which property acquired. 1. Bags: No claim of right to extortion. 2. Butler (Has been overruled): claim o right is a defense to robbery (spec. intent) 3. Why this apparent difference? Extortion is a statutory crime - not CL crime like robbery. Theft is criminalizing a taking w/ bad mens rea; no bad mens rea in extortion, and not bound by CL. 9. Blackmail McCormick v. U.S. 1991. DO NOT READ 10. Extortion or Bribery 3. Bribery The 1) corrupt (meaningless word) payment or receipt 2) of a private price 3) for official action. Pay Little for an . Both parties guilty. A State v. Bowling 1. Intro. 2. MPC 3. Crime is complete w/ offer or Solicitation 4. Using Official influence 5. Extortion as a defense to bribery 4. Burglary Breaking and entering (often precursor to theft) with intent to commit felony. People v. Gauze. Cal. 1975. Charged w/ burglary in his own home. Got in fight with roommate. Said, when we
80 get back home, he shoot him. Gauze comes back to home and shoots Miller. D ll says: Can burglarize your own home. The court does concede that part of the t California code stipulates, essentially, that anyone entering with felonious intent is a burglar. However, it argues that the panic and distress that typically is suffered by a burgled victim, is not manifest when a person enters his own home. Thus, penalizing D for burglary is merely punishing him twice for the crime he committed while in the house. In California, Penal Code section 459 states, in part, that burglary is, Every person who enters any house, room, apartment... with intent to commit grand or petit larceny or any felony is guilty of burglary. Clearly, he broke this statute and Mosk ignores this. [Has been amended since this decision (whether inhabited dwelling).] One can not burglarize his own home because burglary can only be committed by a person who has no right to enter into the building. CL 1) Breaking and 2) entering 3) the dwelling house 4) of another 5) in the nighttime 6) with the intent to commit a crime. Modern Burglary Statutes Often get rid of elements: dwelling house of another, in the nighttime. Breaking Entering CL: Intent to commit felony must coincide w/ the act of breaking and entering (if you decide to steal once you enter, is not burglary). People v. Ravenscroft Dwelling House Of another In the nighttime Intent to commit a felony Should burglary be a crime
1. 2. 3. 4.
5. 6. 7. 8. 9.
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82 13. RAPE 1. Almost always a credibility dispute (no corroboration of evidence). Fuzzy Lines. Stigma attached greater than theft. Consider: Wrongful intercourse tort? Yes (e.g., Congress made it a federal crime to rape. 2. Rape defined (should be wide enough to get the bad guys, but not so broad to criminalize stupid, non-criminal acts) 1. Old CL 1. Intercourse w/ female 2. by force 3. and w/o consent. (Note seeming contrast between 2 and 3). 2. Historically: only way to prove elements 1 and 2: prove resistence to the utmost. 1. Didn cover enough crimes so courts began to modify the force elements. t 3. Modern CL (Statute driven; Constantly changing and all over the map): 1. 1 evolves to be gender neutral 2. 2 evolves to include force, fear or threats; 3. 3 evolves to be satisfied by minimal or even no resistence. 4. Statutes: 3 changed significantly. Is rape unless there is consent: instead of obligation to prove no consent, the burden is now on D to show, as an affirmative defense, that there was consent. Thus, 3 taken out as an element, and becomes a defense. 1. Marital exception gone. 5. See also unlawful sexual touching. 3. Statutory Rape Sexual intercourse with a female under the age of 18. (now includes males). Person of such age incapable of consenting. 1. Is a strict liability crime: No mens rea required. At some point, we feel comfortable w/ strict liability (its just wrong to have sex with a 5 year old). But, it becomes difficult as you get older. In fact, 13 used to be the age for statutory rape. 2. People v. Hernandez Cal. 1964. p. 381. Voluntary sexual intercourse w/ girl who claimed she was 18. D raised reasonable mistake of fact of age. 3. State v. Stiffler ID 1990. 383. Reasonable mistake of prosecutrix age not a s defense (Book claims this is a majority, but this is probably wrong). 4. Historical basis Children as property; concern for preserving virginity. 5. Mistake of age defense in other states Most states recognize this defense when the defendant is also young. 6. Chastity as an element Some (FL and TN) require complainant must be of previous chaste character.D was first to have intercourse. Most don require t
83 chastity. 7. Abolishing At least decriminalizing. Currently, age of consent ranges from 13 to 18. Does setting a precise age, though arbitrary, provide Ds awareness of how not to violate the law. Sentencing actually much lower than on the books. 4. Forcible Rape 1. Posner: Is an example of a smart man with really stupid ideas. 2. PA: Anti-victimstance b/c the definition of rape requires violence 3. Mens Rea 1. Old CL: Rape had no mens rea requirement: anyone who had sex by force w/o consent was guilty of rape, even if by mistake. Old CL also required forceto clearly delineate b/t intentional intercourse (which we all want to have) and intentional intercourse w/o consent. Goes to property conception of female -- theft. General Intent Crime (Intoxication not a defense). Very clear. (Note: Morgan court gets it wrong: mistakenly says it was a specific intent crime) 2. Some courts dispense w/ mens rea whenever force or threat of force are used. 3. Modern CL: Rape requires the specific intent (recklessness or negligence) to have intercourse w/o consent. Unreasonable mistake is a defense to a specific intent crime. (1) Recklessness An unreasonable mistake is a defense. In these jurisdictions, if you don know there a risk she not consenting and you ignore that t s s risk, then you can be convicted. t (2) Negligence Only a reasonable mistake is a defense. (D should know; MPC style)(an unreasonable mistake about consent is no defense) (3) In all jurisdictions, a reasonable mistake is a defense (unless statute says otherwise) See p. 409 comparison of states: (In PA, even honest, reasonable mistake is no defense 4. MPC 213.1-6: Does not attempt to legislate private morality. (1) doesn't use element of non-consent (implied in "compel") first and second degree felony based on injury to V. victim's fear need not be reasonable, just actual. Very outdated. Coerced homosexual intercourse not crime under the MPC. (1) Intercourse (2) Female (3) Not wife (4) Compel (5) By force or threat [fear] to anyone; OR (6) If she is unconscious (7) Less than 10
84 (2) Passed in 1962 is captive of its time (gender specific); Promiscuity is a defense; marital exception. 4. Director of Public Prosecutions v. Morgan England 1976. Husband and three coworkers raped his wife. Husband said she liked to be forced. Three convicted of rape, husband also, via accomplice liability (remember, husband couldn be t convicted of rape of his wife). Jury believes wife: two children were witnesses. Is it rape if the think believe she is consenting, even if such a belief is unreasonable? 1. Looking at rape as a property crime like theft (specific intent) and thus allowing a defense of mistake of fact; Court is wrong b/c Rape under CL has been a general intent crime, no mistake of fact defense 2. Reynolds v. State AK 1983: always wanted to fuck a model. Took victim to apartment, did not use force. Reckless regarding victim's lack of consent. Rule: must prove knowingly engaged in sex and Reckless (subjective awareness of substantial risk) w/r/t consent (under Morgan and Reynolds) 3. Mayberry (CA, 1975): when someone argues "consent" as a defense, state must prove at least NEGLIGENCE regarding victim's lack of consent. Mistake allowed only when HONEST and REASONABLE. Stricter than Morgan/Reynolds. 4. Standard: if the standard for culpability is RECKLESS, then UNREASONBLE or REASONABLE mistake is a defense. If NEGLIGENT is the standard, only REASONABLE works. 5. State v. Olivio: retarded people can consent. 6. Requiring Express Consent If you believe that there could be honest mistakes of fact about consent, why not require verbal consent? Why no require written consent? 7. Shifting the burden of proving consent Once prosecutor has proven that D used force, should D shoulder BOP on consent issue? Consider: Free and voluntary choice impossible where coercion present. Some states have eliminated nonconsent as an element of rape (but most require prosecution to prove lack of consent BRD once D has raised defense of consent. 8. Incapacity to consent (see statutory rape). Mental disease. Alcohol not a cause for bringing a rape case. Olivio. 9. Sentencing Kidnappers, robbers, drug offenders given stiffer penalties than rapists. 10. Imposing death penalty (1) Coker v. Georgia 1977: U.S.S.Ct. struck down GA law that allowed for execution of rapist. But what about aggravated rape? Consider history: death penalty had been discriminatorily imposed on blacks. Consider white woman being raped by black man, and devaluing of white
85 husband s property. 5. Actus reus What evidence is sufficient to constitute a rape. Is changing constantly. Lots of other lesser offenses if act of rape can be proven. See California statute t handout. Question is: how to divide sexual crimes. Force or fear of force 1. State v. Rusk MD 1981. P-Pat met D-Rusk at bar. Rusk requested ride to his apartment. Pat persuaded to give him a ride b/c thought Rusk was friends w/ her friend Terry. She said a ride. Parked outside his apt., Rusk took just keys out of car. Pat then felt fear and considered rape. She was in a strange neighborhood; didn think what to do. Went to apt. sat in chair. Rusk asked t her to get on the bed w/ her. He pulled her onto bed, began removing clothes; she then helped. He kissed her, all while she verbally protested. She then cried not knowing whether he was going to kill her if she protested. He lightly choked her as she cried. She said: I do what you want will you let me go? if He said yes. After intercourse, he gave her keys and she left. His testimony was different: said they were affectionate in the car and that he did not remove the keys. Pat came willingly to his room. She uptightafter intercourse. got Denied using force to get intercourse; denied strangling. Appeals court reversed conviction of 2nd degree rape. (1) MD Supreme court says Appeals Ct. out of line: it re-weighed the evidence that had been evaluated by jury. Simply: the jury believed her testimony; readily apparent to us that the trier of fact could rationally find that the elements of force and non-consent had been established and that Rusk was guilty of the offense beyond a reasonable doubt. . . Just where persuasion ends and force begins in cases like the present is essentially a factual issue (jury evaluation), to be resolved in light of the controlling legal precepts. That threats of force need not be made in any particular manner in order to put a person in fear of bodily harm is well established. No defense of contributory negligence. Indeed, conduct, rather than words, may convey the threat.Even in the most liberal courts, persuasion (compulsion by psychological threats) is not enough to convict. Courts struggling w/ the word threat. Dissent: wants to see more evidence of threats (can just be victim subjective feelings of being threatened). t s 2. People v. Barnes CA 1986. P had known D for four years. She had purchased pot from him. 2 Weeks b/f incident, they drank wine together. P came over at 1 AM, persuaded to come in b/c cold, but said had to get up early, so wanted to buy her pot and go home. 15 min: D hugged P. P thought advances meaningless, but then he said he didn want her to leave. Eventually, she t went to the gate and he started ranting saying she couldn leave. He was t
86 Psychotic.She didn know how to open gate. They argued for 20 minutes t there. Went back inside (him to put shoes on). He threatened her, said what big muscles he had. can make you do anything I want. Marsha realized I he was crazy, and after 40 minutes played along. Had sex. P engaged b/c feared (based on actions and words) he would become physically violent otherwise. D made affirmative defense of consent. Court of appeals reversed. 1. Analysis: goes through evolution of statute: Rape defined as Where it is (2) accomplished against a person will by means of force or fear of s immediate and unlawful bodily injury on the person or another.Contains no reference to resistence. Is a change from CL which required resistence to the utmost that continued through the entire assault. Even when this harsh rule was dropped, CL still demanded some form of resistence b/c of a basic distrust in woman testimony. But court notes concept of s resistence questioned: see frozen frightis a reasonably expected response (could man mistake such freezing for consent?). Legislature s removal of resistencebrings rape into line w/ robbery, kidnapping, assault where law does not expect falsity from the complainant.Ct. the may still look to elements of force or threats in order to get rid of defense of consent. Fear still must be a reasonable one. 2. State v. Alston: formerly dating couple. After break-up, guy has sex and woman cries rape. Court acquits because although NO CONSENT, there was NO CONSTRUCTIVE OR ACTUAL FORCE. 3. Commonwealth v. Berkiowitz PA 1994. No force, no consent = no rape. College student supposed to meet boyfriend at a bar. He never shows up, so she goes to a friend room. (She wrongfully trespassed!) Friend not s there, but roommate in bed. He asks her to stay, to sit on bed. She sits on floor. He got on floor and starts massaging breasts. He thinking: I a s m hunk! I have consent. But, she did say, sort of, no. Plaintiff s testimony very ambiguous she not saying all the stuff you s re supposed to say (that she resisted, that he used force). She is just a very passive person (even in court). Trial court excluded boyfriend s testimony. (1) PA Rape statute: 1) forcible compulsion; or 2) threat thereof so long as would prevent resistence by a person of reasonable resolution; or etc.... Why did she have sex if she didn want to? Did he psychologically t coerce her into having sex? (2) On appeal, court stuck with jury verdict, so it can only review the legal s definitions of rape. (3) HOLDING: No consent, but no actual force = no rape. Not rape if there is no consent ( ), as long as there is no force. no
87 (1) Counter arguments: 1) sex itself is force 2) any physical proceeding beyond a is forceful. no COMPARE: 4. People v. Iniguez CA 1994. No Force. No consent = rape. Rape in CA: 1) against person will (no consent), 2) by means of force, violence, or fear s of immediate and unlawful bodily injury on the person or another. (1) Diff. w/ PA: CA Says nothing about threat; fear counts (PA doesn t have) - fear can be created by a threat, but can be solely in V mind) s (2) Plaintiff arrived at a friend house on the eve of her wedding. Friend s s fiancee (she had never met him) was going to be a stand-in father at the wedding, raped her in the middle of the night. Court doesn t believe there could be consent from her, considering she was getting married the next day. She doesn say anything during the act. She t doesn do anything either. IS PASSIVE. Leaves right away and calls t a friend. Was petrified. We don suspect the veracity of her story -t further, he admits to it. (3) HOLDING: No resistence is required, and her fear was reasonable (b/c she was in a secureenvironment). There was no force here, but the court didn address this because fear was established. His t response to her saying she had fear: I didn know she was scared. t Court says, so what, she didn give consent. It isn important that D t t needs to be aware of her fear. Man has no right to take advantage of un-consenting female, even if he doesn think she fearful. Further, t s it is not the burden of the woman to scream. 5. Some courts (minority) say unconsented to intercourse is inherent force. Converse way of phrasing this: there is no such thing as an unforced rape. 3. Fraud 1. Fraud in inducement: (1) Boro Guy poses as woman husband (not guilty for don criminalize s t seduction. Misrepresentation for consent (consent given to act of sex). 2. Fraud in factum (1) Minkowski Dr. probes woman w/ cervical device then penis guilty. Misrepresentation of fact (consent not given to act of sex). 4. Acquaintance rape 60-80% committed by non-strangers. 5. Consent can be withdrawn at any time 1. People v. Roundtree CA 1999. (Handout) Can you revoke consent once there has been penetration? Yes. He didn stop after penetration when she said t stop. Consent can be revoked at any time
88 6. Grading nonforcible, nonconsensual intercourse Rape is simply different than theft, so hard to think about gradations that trivialize non-violent rapes. 7. Rape-shield laws Keep out evidence about the victim. 8. Woman can not rape a woman. No Penetration. But penetration by another object is a crime, but not rape. 9. Sentencing Rape is punished much more severely than lesser crimes.
89
90 14. JUSTIFICATION AND EXCUSE
Distinction b/t these two not important to RKL. Defendant certainly don care. s t Elements of the crime have been shown, but even so, I am innocent b/c I have this legal defense. Society saying: if you can prove that, we let you off. Compelling ll facts would normally drive you to a certain conclusion, but something tells you to find the conduct permissible. Is all about designing a jury instruction that can be used in subsequent cases. Thus, courts not liberal in granting defenses b/c many defendants will try to sneak in the box. 1. SELF DEFENSE (Justification (historically considered an excuse) Use of defensive force to: 1. WHO 1. protect oneself 2. protect one home or property s 3. or to serve law enforcement interests (fleeing felon). 4. (protect 3rd person (putting yourself in other person shoes)) Majority view: s rd D can use defensive force to protect 3 persons, so long as reasonably believe force necessary to protect 3rd person from unlawful use of physical force. 2. CL Elements: 1. D reasonable s 2. belief 3. that b/c of an imminent threat 4. of harm (some just say harm, some say bodily harm or physical force) 5. that it was necessary 6. for D to use force to prevent threat 3. Application 1. Standard for belief (1) Objective standard (majority view) (1) D fear and assessment of situation must be both honest and s reasonable (2) What is reasonable? 1) generally, though standard is that of a reasonable cautious person taking into account D and V physical attributes (and situation) s s 2) Some cts say standard of reasonableness of D apprehension s should be a reasonable woman standard (Wanrow WA) s 3) Some cts say standard of reasonableness of battered wife D s belief is that of a reasonable battered wife (Stonehouse - PA) (greater understanding of danger of the situation than average woman) (3) D can still be entitled to defense even if belief is wrong, so long as
91 reason. Goetz p. 740. D belief that other is going to commit a s forcible felony must be objectively reasonable a person may not use deadly physical force upon another for self-defense unless he reasonably believes the other is committing or attempting to commit a forcible felony; the determination of reasonableness must be based on circumstances facing D or his situation. (4) People v. Goetz. NY 1986 (p. 740) Goetz on subway w/ concealed, unregistered gun. Approached by 2 of 4 black kids who asked for $5. He shot them all, deliberately. Statements made after caught contradicted later testimony that the 5th shot wasn premeditated. t Statute that recognizes justification as a self-defense with language reasonably believesdoes not imply a subjective approach b/c he reasonable standard implies an objective standard (of people) (which would be in line with other statutory language). Note the statute allows for deadly force if threat of robbery, even without threats of force. 1) After indictment reinstated, jury found him not guilty on all counts except crim. possession of a weapon. Spent 8 months in jail. (5) Imperfect self-defense (reducer of offense) 1) Some states that have objective standard allow imperfect selfdefense (PA) 2) Imperfect self-defense will provide a compromise in punishment for an honest but unreasonable belief. Instead of murder, vol. manslaughter. (2) Subjective Standard (Minority) (1) D fear must be honest (can be unreasonable) s (2) MPC: 3.04 (p. 909) Gets you out of most cases b/c only has one level of murder. (Only 2 states follow too confusing to jurors). 1) MPC Elements: 1) belief 2) that b/c of threat of 3) unlawful force 4) that it was immediately necessary 5) for D to use force to protect himself 2) 3.09 But if D reckless or negligent in having such belief that force is necessary, he has no defense in a prosecution for which reckless/ negligence suffices to est. culpability. (so is kind of objective) Creates mid-levels of culpability. 1) ie. if D have honest but unreasonable belief that he had to use deadly force, he may be convicted of negligent homicide, but not murder
92 (3) Standard determined by viewing circumstances from D standpoint s alone. 2. Standard for degree of force used (1) General (1) the amount of force used to defend oneself must be reasonable (2) it must be reasonably related to the threatened harm which D seeks to avoid (2) Deadly force (Can use for defense of property) t (1) force used w/ intent to cause death/serious bodily injury (long-lasting injury/ severe pain) or which D knows creates a subst. risk of death/SBI (2) Mere threat of death/SBI is not deadly force (3) can only use deadly force if D reasonably believes that other is about to inflict unlawful death/SBI on him and that deadly force necessary to prevent (Goetz) (4) Battered Wife Syndrome itself w/o more show of an imm. threat of death or SBI is not sufficient to prove imm. threat req to justify d deadly force. Three stages: 1) tension building; 2) acute battering incident; 3) paleeeze forgive me honey, you know I luv yew(thus, woman stays for next round). Only small % of battered women kill. (5) State v. Norman NC 1989 (p. 751) Battered woman defense s 1) Husband threatened to kill wife multiple times. Treated her like a dog etc. for 20 years. For 3 days prior to wife killing, he had been exceptionally angry. Witnesses testified to his threats and believing that Norman would never be able to escape. Expert witnesses testified that BWS made her believe she had no choice to escape (emotionally, financially dependant; learned helplessness Everything feels like imminent harm (from ). subjective standpoint of wife). Wife shot him 3 times in head while sleeping. 2) At trial: jury convicted of 1st degree manslaughter which was mitigation from 1st degree murder. Under CL, heat of passion doesn allow for mitigation if there was a cooling off period. No t clear CL defense.. 3) Most self-defenses require imminence; some duty to retreat (minority). Here, b/c there was no imminentthreat of harm, killing was not justified. Any finding otherwise would legalize opportune killings of abusive husbands. Courts worried about liars (clearly, that wasn an issue here as there was so much t
93 evidence outside of her testimony) and creating new defenses in general. Use common law to get out of their mess and prevent someone from getting off. (6) Humphries (CA) Reasonable battered woman? No. Must be reaction of reasonable person in the battered woman situation. s (3) Imminence requirement (1) Threat must be imminent 1) pre-emptive strike against feared aggressor too soon (Majority/Norman) (Problem: seems to imply must wait until physical assault under way b/f her apprehensions will be validated by law) 2) pre-emptive strike in BWS situations o.k. b/c for wife danger is constantly immediate (the next blow might kill) (Minority/Norman Dissent; gaining acceptance) (2) MPC 3.04(1) D must believe that defensive force was immediately necessary to protect against the use of unlawful force ... on the present occasion. (4) Initial Aggressor Rule (1) CL: D not entitled to self-defense if D was initial aggressor 1) Some cts. say D must be entirely free from fault in provoking the altercation (even some language could be enough to lose selfdefense justification) Would be available if you withdraw. 2) Some cts. limit this rule to cases where D committed an affirmative unlawful act reasonably calculated to produce V threatening s conduct. (2) MPC: Prohibits use of deadly force if D, w/ purpose of causing death/SBI, provided the use of force in the same encounter. 3. Standard for requiring retreat (1) Traditional Rule: D has to retreat b/f resorting to self-defense if can retreat w/ complete safety (1) MPC 3.04(2)(ii) adopts this approach (2) Castle Exception: Not required to retreat if attack in own home (Tomlins NY) (Should this be extended to one driveway, place of s work, etc.?) Recognized by Majority of states and MPC 3.04(2)(b)(ii)(A) 1) Exception to Castle Exception (minority): D is required to retreat if attacker is a co-occupant. (3) Substantial minority of states agree (2) Majority/Modern (not in book): D can stand his ground and use selfdefense w/o taking advantage of an available escape route.
94 4. Burden of Proof (see p. 770) (1) Majority: Gov bears burden of disproving (beyond reasonable doubt) at t least one element of the defense once D has met Burden of production ( burden of coming forward to prove elements of the defense (MPC ) agrees). (2) This is not a constitutional rule, though. Supreme Court allows shifting burden back to the defendant entirely (Martin v. Ohio 1987): in some cases, D may have complete burden of proving defense by a preponderance of the evidence. (Gov doesn have to disprove BRD) t t (3) If the defense requires expert testimony, must notify gov ahead of time. t Here, gov will file a motion to preclude raising the defense before trial. t Generally, must show some positive prove. Dangerous for trial court to preclude the defense because it gives the defendant a good shot at appeal. 9th Cir. Schoon (1991). 2. Other uses of defensive force 1. Defense of Property 1. Majority: D can use non-deadly force to prevent a threat to her prop., but cannot use deadly force solely to protect property (MPC 3.06 agrees) 2. Minority: D can use all reasonable force, including deadly force, to protect property. 2. Defense of Home 1. Generally: greater leeway allowed for use of deadly force 2. Several views on when deadly force allowed: (1) V making unlawful entry to commit felony (Bishop; but not mechanical devices that don discriminate and make t reasonableinquiry; got life in prison. Should have argued there was no intent to kill) (1) Supplement: McNeese. CO Make my day statute: any threat of harm, however slight, you can shoot to kill (you must be right -- if its a policeman, the defense would not be available). Kind of arbitrary because its not based on your belief but rather the circumstances (2) CL: Any unlawful entry (Gardner) (3) Some jrx. allow for forcible felony or if pose risk of death (Ceballos) (4) MPC 3.06(3)(d)(ii): when D has honest belief (but can be subject to reckless or negligent belief) V attempting to dispossess D of home or to commit arson/burglary/ robbery and v has used/threatened deadly force in D presence or using non-deadly force would create substantial danger to s SBI (5) Use of mechanical, deadly devices to protect home (6) Modern: Prohibits use of spring guns under any circumstance (Bishop) (1) Bishop: Guy lives in trailer home that been burglarized before. Went s to work and placed spring-loaded gun in door. Guy came over and
95 killed. Court rules this not a valid defense of home b/c Bishop was not there to form a reasonable belief as to threat V posed. (2) CL: Can use spring guns if he would have been justified in using deadly force had D been present. 3. Law Enforcement Use of force to effect an arrest/stop escape 1. Non-deadly force: Available to apprehend fleeing suspect if officer reasonably believes such force is req d 2. Deadly force (1) Old CL: Permitted deadly force if nec. to prevent escape of fleeing felon (not misdemeanants) (Recall: all felonies punishable by death anyway, so just a speedier execution) (2) MPC: Limits to felonies and requires that officer reasonably believe that use of force necessary and will not create substantial risk to others (3.07) Subject to limitations of 3.09 (1) Exceptions: denies defense if officer mistaken about law, unless he uses an arrest warrant that later turns out to be invalid. (3) Modern Statutes Limit use to where there is a felony and officer believes suspect poses treat of serious physical harm. (4) Tennessee v. Garner 1985. Deadly force to capture fleeing felon. (1) Reject CL rule. Officer shot 15 year-old fleeing from scene of burglary. Officer knew he was unarmed. Statute allowed for use of deadly force against all fleeing felons, regardless of whether were dangerous. U.S.S.Ct. invalidates by holding that deadly force may only be used where officer has probable cause to believe that suspect poses sign. threat of death or serious physical injury to the officer or others. 1) Note: Black suspects shot at more often by Memphis police department. 3. To effect an arrest: Officer may use same amount of force to effect an arrest as would be permitted to prevent suspect escape. s 4. To prevent a crime (1) Non-deadly force o.k. if reasonably believe nec. to stop a breach of peace off. (2) Deadly force o.k. only if used to prevent forcible felony or felony that creates serious risk of SBI 5. By private citizen for law enforcement purposes (1) Non-deadly force: generally citizen has sam rt. to non-deadly force as officer
96 (2) Deadly force: citizen rts. more limited than officers s (3) MPC 32.-7(4)(a): Private cit. who responds to officer request for assistance in making unlawful arrest justified in jusing any force that he would be just. iin using if th arrest were lawful, prov. he does not believe the arrest is unlawful. 6. To resist an unlawful arrest (1) CL: o.k. to use reasonable non-deadly force to resist unlawful arrest (not deadly force) (2) Modern Trend: Prohibits use of any force to resist illegal arrest, unless officer using excessive force. We believe law enforcement well-regulated today. (3) POSS. POLICY QUESTION: BELIEF OF PRIVATE ACTION TO DEFEND PRIV.PROP.
97
98 3. NECESSITY (Justification) Is different in many jurisdictions. Policy: If harm which will result from compliance w/ law is greater than that which will result from violation of it, he is by virtue of the defense of necessity justified in violating it. Never a defense to homicide. 1. CL Elements 1. D reasonably believe 2. that it is necessary to break law 3. in order to prevent/avoid 4. an (imminent) greater harm 5. (Can use for murder) t 2. MPC 3.02 Elements ( Choice of evils Pick the lesser evil. Natural force, not a ) human actor (that would be duress). Adopted by states. 1. Elements (1) D honestly believes (2) that committing a crime is necessary (3) to avoid a greater evil 2. 3.03(2) (reminiscent of 3.09) Not available where D charged w/ crime requiring mens rea of only reckl./negligence and was either reckless or negl. bringing about the situation requiring a choice of harms or evils. in 3. Not available where legislative foreclosure prohibits one choice. 3. Distinguished from duress 1. Duress arises when person unlawfully commands another to do an unlwaful act under threat of death/SBI 2. Necessity defense is realized where pressure of natural physical forces compels D to chose b/t 2 evils. 4. Requirements/ Issues surrounding ND 1. Imminence requirement (1) Modern Statutes: Require that harm sought to be avoided by imminent (Kabat) (2) MPC doesn require imminence t (3) RKL: CL required imminence but modern trend is not strong on requirement. 2. Causal link b/t criminal conduct Must be causal relat. b/t the crime and the harm to be avoided (Kabat) (entering the military installation and damaging missiles would do nothing to avoid threat of nuclear destruction). Such analysis equates reasonablenesswith success . 3. Existence of legal alternatives (1) Kabat: if reasonable legal alternatives available, D crime not necessary s
99 (ND not available) (2) RKL: Cts split on whether o.k. for D to choose lesser harm, or if D must choose the lesser harm. 4. Exceptions to Necessity defense (Where D barred from necessity defense) (1) Fault exception (1) Some jrx. not allow for necessity defense if D was at fault in bringing about situation. (2) Perez CA D claims he was carrying gun b/c threatened by gang, but he was in rival gang. (2) Intentional homicide (1) Some states: necessity defense not avail. in murder case (Dudley v. Stevens) (2) Other states and MPC: do not necessarily bar ND in murder case (3) RKL Modern trend is not to bar defense for intentional homicide (3) Legislative Foreclosure to the ND Goes to the reasonableness of the actor. (1) Per MPC: Once legislature has made deliberate choice b/t two evils that explicitly deals w/ situation then D cannot claim ND. Kabat. 1) e.g.: D cannot claim he hurt abortion clinic to prevent greater harm b/c S. Ct says that abortion is constitutional and legally protected. (2) Schoon 9th Cir. 1991. ND barred from all Civil disobedience actions. 5. Application in various contexts (1) Prison Escapes: Limited ND available only if Lovercamp elements met: (1) no time to complain to author./ history of futile complaints (2) no time/ opp. to resort to courts (3) no evidence of force/violence during escape (4) prisoner imm. reports to authorities after escape (2) State v. Reese IA 1978. p. 787. D escaped from prison (helped others too) b/c of threats of death and homosexual attacks from lifer.Had the reported to prison counselor about the problems. Apparently raped. Five guards supervised 300 inmates. D. found 24 hrs. after escape. Asked for jury instructions on defense of necessity. (1) Ct. adopts Lovercamp (CA) approach, says ND not allowed here (instruction not allowed) b/c he did not immediately go to authorities -what would the jury have said regarding the immediacy (he could not have fulfilled that element as a matter of law -- not even close). Really being tough: don want jury to get the chance. t 1) Not duress b/c the lifer didn make him leave. t 2) Dissent: Absence of one of preconditions of Lovercamp should not preclude an instruction on necessity.
100 (3) Civil Disobedience 9th Cir. Has barred ND in all cases where D engaged in indirect civil disobedience (Schoon) (1) Kabat p. 797. Protestors. D cut fence, goes into missile site and causes damage and leaves note stating opposition to nuclear war. Claim is that if they don damage the silos there will be a nuclear war (balance t of harms clear: much better to damages silos than war) 1) Vital element of ND is lack of reasonable alternatives to violating the law (Ds argue they tried voting too slow, ineffective). 2) The harm to be avoided must be so imminent that absent D s criminal acts, the harm is certain to occur. 3) Society (through the legislature) has already weighed the evils and decided nuclear weapons are not as bad as you think. (4) Miscellaneous contexts where ND not available (1) Medical Marijuana: Sick people using pot to ease AIDS symptoms (would prevent gov overriding interest in regulating such t th substances) 9 Cir.: defense of necessity available, but decision vacated: See supplement. (2) where D carries concealed weapon b/c he was once victimized (3) Economic Necessity: where parent steals to feed child (using economic nec. as a defense) when there are clearly public assistance programs.
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102 4. DURESS (Excuse) Differs from ND: does not require you to choose the lesser evil. Its not a choice. You were compelled. Free will overwhelmed. Criminal law: only criminalize voluntary actors. Actor can be at fault for having put themselves in the situation t (see gang case). MPC: for duress, if you reckless in putting yourself in the re position of duress, you don get the defense at all (similar to CL). t 1. CL: Elements: 1. D must have a reasonable belief 2. of another threat s 3. of imminent 4. death/SBH to himself or loved ones 5. and feel compelled to commit criminal act because of the threat 2. Distinguished from necessity: w/ duress the source of threat is another human being. 3. State v. Scott KA 1992. p. 807. No duress defense instruction 1. Victim Green (14 yrs. old) subjected to all sorts of aggravated bad things in Scott presence, but harm was done by gang leader Woods. Scott was a s gang-member willfully. Recall: there is no such thing to consent to a crime even if Green had agreed to being victimized, the prosecutor is filing a charge. Much of Green evidence was helpful to Scott (Scott stuck up for him). s (1) Statute: A person is not guilty of a crime other than murder or vol. manslaughter by reason of conduct which he performs under the compulsion or threat of the imminent infliction of death or SBI, if he reasonably believes that death or SBI will be inflicted upon him or upon [a loved one]. Not available if D willfully or wantonly places himself in a situation where he will probably be subjected to compulsion or threat (if there is a reasonable opportunity to escape, duress defense not available). (2) Note comparison with self-defense: there is no exception where the victim could recklessly put themselves in a position to be exposed to harm (except for initial aggressor). 4. Policy Majority view: D who acts under duress makes a free and voluntary choice, albeit a difficult one. 5. Application/standard for elements/ requirements 1. Imminence and inescapability requirements (1) Most states require the threat be imminent and inescapable. Why: (1) D is not coerced if he faces only a veiled threat of future unspecified harm and has opportunity to avoid committing the crime by escaping or reporting the threat to authorities. (Scott duress defense not allowed)
103 1) Coercion or duress must be present, immediate and impending 2) if intimidation not continuous and if there is reasonable opp. to escape D cannot claim compelled 3) mere fear will not support a compulsion defense instruction (2) Opportunity to escape must be reasonable: Contento-Pachon: Court allows DD where D told he had to carry cocain or his family would be killed and was being watched at all times. Note: seems threat to Conento was less than to Scott. (2) Requisite nature of the coercive threats (1) Most jrx: duress d limited to where D threatened w/ Death or SBI (2) Minority: some circumstances, commission of minor criminal offense should be excusable even if threat is not deadly force 2. EXCEPTIONS TO DURESS DEFENSE (1) Fault exception (Majority): DD unavailable if D recklessly puts himself in situation where coercion likely and therefore was at fault in bringing about the situation that required him to commit crime. (Scott) (2) Intentional homicide exception (Majority): most preclude DD to homicide. 3. MPC 2.09 (p. 906) (1) General rule: allows DD if: (1) D coerced to commit crime (2) by use of threat of (3) unlawful force against the person of another (4) that a person of reasonable firmness in his situation would have been unable to resist (2) Diff. w/ CL: (1) MPC does not require that physical force be of imminent death/SBI (2) MPC does not foreclose the defense in murder cases (3) Exception to the defense under MPC: (1) not available if D recklessly placed himself in a situation where it was probable that he would be subject to duress (2) if D belief of threat is erroneous and was recklessly created there is s no DD to crimes requiring mens rea of recklessness or negligence 4. Following Orders defense: Court never excepts this defense when the allegation is killing (except war; cops occasionally) (Ollie North). 5. p. 819 Patty Hearst: Brainwashed. Compelled: torture/rape. People holding guns to her. Was convicted
104 5. ENTRAPMENT (Excuse) Gov made me do it. Almost never available b/c of predisposition on part of D t negates entrapment. (Jacobsen 1992 totally confused). Easy to understand; impossible to apply. Gov should not be manufacturing crime to induce t otherwise law-abiding citizens. Should not take advantage people who are not otherwise predisposed to crime. Is o.k if the person is already a criminal. For long time this defense was not really allowed. Since Jacobsen has been allowed. 1. General rule: 1. Subjective approach (Majority) Focus on: (1) Government inducement (doesn matter how outrageous if: D already t predisposed) (2) Must implant the criminal design in D mind to get ED s (1) No ED if D was predisposed to commit the crime 1) Russell (p. 821) U.S. 1973 thrust of ED focuses on intent or predisposition of the D who committed the crime; government allowed to provide opportunities or facilities for commission of crime 2) Sorrels (Prohibition case) ED prohibits law enforcement from instigating a criminal act by persons otherwise innocent in order to lure them to its commission and to punish them 3) Sherman (narcotics sale) to determine whether entrapment has been established, line must be drawn b/t the trap for the unwary innocent and the trap for the unwary criminal 4) Jacobson Deals with timing of looking at predisposition: did the predisposition exist before the government contact (3) Applying subjective approach: (1) Proving Inducement (to get entrapment defense) 1) Fed courts (broad approach): inducement may be established w/o any showing that an agent engaged in activities beyond the reasonable limits of those strategies necessary to produce evidence of criminality 2) Most states (narrow approach): require some evidence of inducement or persuasion beyond simply affording the opportunity to commit the crime. (2) Proving predisposition (to overcome ED) 1) a D is considered predisposed if ready, willing, and able to commit type of crime charged, whenever presented w/ favorable opportunity 2) factors to be weighed in evaluation of D predisposition: s 1) character/reputation of D 2) whether suggestion of criminal activity originally made by gov t
105 3) whether D engaged in criminal activity for profit 4) whether D evidenced reluctance to commit the offense 5) nature of the inducement/persuasion offered by government 3) Jacobson U.S. 1992 (p. 831) Objective approach 1) Bare Boys II(Majority -- seen as hampering law enforcement): gov must prove that the predisposition was t independent (existed prior to gov inducement) and was not t the product of attention that the gov had directed to D. Note: t st 1 time he received the mailing, it was legal. Then they start sending him letters. White is misapplying a number of standard rules (e.g., he reevaluated the defendant testimony). s 2) White (majority): Gov must prove D was predisposed to t break the law before gov ever touches you. We won permit t t gov to rope people in on child pornography. t 3) this reasonable suspicion rule discourages lengthy sting operations where there is not evidence of predisposition at the onset and ensures that police detect but do not create the crime 4) O Conner (Minority): D predisposition must be shown to s the gov agent when the crime is first suggested. t 5) In a sense, congress agreed with this decision b/c they did not write law saying Entrapment not a defense to receiving child pornography. 4) RKL: Kelly case says that the gov does not need to have some t suspicion before starting entrapment 2. The Objective Approach Minority of states/MPC 2.13 (p. 907) (dissent in (unconnected to D culpability) s (1) only looks to gov action to determine if its entrapment t (2) D disposition or lack thereof immaterial to the defense s (3) defense is allowed if gov induced the offense by: t (1) making knowingly false representations that conduct is not criminal, or (2) using methods creating a risk that the offense will be committed by those not ready to commit (4) MPC does not allow the defense for crimes involving bodily injury (5) Applying objective approach (1) guidelines for determining what tactics are likely to include the normally law abiding citizen to commit a crime 1) entrapment satisfied if the acts of the law enforcement agent would generate a normally law abiding person a motive for the crime other than ordinary criminal intent (Barraza CA) 2) entrapment satisfied if the affirmative police conduct would make the commission of a crime unusually attractive to a normally law abiding person (Barraza CA) 3) Also need to consider the D potential vulnerability, age, s
106 educational level (Julliet) 3. Policy arguments (1) Pro subjective/con objective approach (1) subjective approach attempts to distinguish b/t people who are blameworthy and persons who are not (2) objective approach creates a risk of acquitting dangerous chronic offenders (2) Pro objective/ con subjective approach (1) no matter what the D past record and present inclination to s criminality, it is still possible that he might not have committed the particular crime unless confronted with inordinate inducements (Barraza) 4. Procedural issues (1) who decides if entrapment exists (1) for subjective approach the jury decides if entrapment exist (2) for objective approach judge decides if entrapment exists (2) When can D assert ED? (1) fed. cts. allow a D to claim E even if he denies the crime (Mathews) (2) most states: require D to admit the crime b/f they can claim E (not CA) 5. Entrapment in other contexts (1) Hawkins p. 841. $100 bill hanging out of pocket of police acting as decoy homeless person. D entrapped b/c there hadn been a problem of t homeless being ripped off. (2) Pezzella: p. 842: there is entrapment where there is a reverse buy case because the criminal design is that of the gov not the D t (3) Moore p. 842: entrapment in a reverse buy case there is no difference b/t an undercover sale and an undercover purchase of drugs and the gov t agent merely provided the D with the opportunity to violate the law (4) Abscam Offering 6. Due process defense for outrageous police conduct (1) Russell: S.Ct. left open the possibility that due process may be a defense for outrageous police conduct. 7. Implied congressional intent is where these defenses come from. All these defenses exist unless legislature writes otherwise. No constitutional right to defense. 8. Private entrapment not possible to get ED here b/c you could have made choice and no gov official involved. t
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108 6. INSANITY (EXCUSE) Why do we morally have this? This is the strongest test of the fairness of our system. Evolution of Court interpretation of insanity s Old CL (Cognitive) M Naghten Case (enlightened) M Naghten test (old CL) Freeman ( Two-pronged; 60's, adoption of MPC) 66 Lyons ( reversion to old CL/M 84 Naghten) 1. General 1. Can only be used to eliminate any mens rea element of a crime. 2. Supplement p. 71: Legislature in four states has eliminated INSANITY DEFENSE. 3. Public Policy: Purposes of criminal law (Deterrence, retribution, rehabilitation) not really served. Although: general deterrence of sane people served. No voluntary act. Criminal law based on premise that we punish freewill. Criminalizing people for what they can control isn fair. t t 2. Scope 1. Cognitive approach (1) Doesn know diff. b/t right and wrong b/c of mental illness t (1) M Naghten 1843. England. Shot secretary to prime minister of England. Court acquits b/c he was insane and failed both prongs of test (cognitive/ volitional) adopted by the court. He knew it was wrong, but unable to control himself. Note: test adopted by court subsequently quashed by queen ire. s (2) M Naghten Test for insanity (Cognitive) (not the test used in McNaghten -- adopted b/c of Queens ire); reflects old CL, unenlightened as to compartmentalization of mind. 1) You are only insane if you: 1) Didn know nature of the act (crazy) You aren making t t mistake, you just have no clue what you are doing. OR: 2) Didn know it was t wrong You think its o.k. to do the bad . thing. 3) Wrong illegal or immoral? Your morality is not at issue. : Society values are the only ones that matter. s 2) Later courts tried to supplement test with irresistible impulse test. Not liked b/c of narrow scope: requires complete destruction of governing power of mind. 2. Cognitive/Volitional Test (1) Elements
109 (1) Cognitive prong: lacks substantial capacity to either appreciate the wrongfulness of his conduct or is... (2) Volitional prong. unable to conform his conduct to the requirements of law. (2) Freeman 1966. 2nd Cir. (Came at height of rehabilitative approach) Drug addict (Heroine, Cocaine, Wine) selling drugs claimed could not control his actions. At the moment, not aware that he was selling heroine. Court accepted. (1) Finds irresistible impulseinadequate (not clear such a thing exists) (2) Likes Lacks (3) Adopts MPC 4.01 (majority of states and fed. have adopted) 1) Note: Use of word substantialmodifies incapacitysuch that anycapacity is not sufficient and that totalincapacity is not necessary. (Courts like these kinds of tests!) (3) Commonwealth v. Tempest PA 1981. Schizophrenic drowned 6 yr.-old b/c afraid of meeting other parents at school. History of mental disease. (1) Guilty: Mental illness alone cannot absolve...Evid. sufficient to prove sane under M Naghten b/c she was coherentand Lucid when interviewed by police. 3. Modern 1. Lyons 1984: Reject volitional prong of MPC test that Freemen adopted. Bad for defendants. Going back to M Naghten only going to look at wrongfulness. No more substantial capacity etc. and failure to conform acts to law. 2. Hinckley Footnote: Psychiatrist experts said he was crazy. Jury ordered to determine BRD that he was sane. Clearly acquitted him. Aftermath: most jrxs have thrown out the extra Freeman prong (lacks substantial capacity to conform acts to law). 3. Problems: we are suspicious of psychological testing. Psychiatric testimony does not have the same standards as law. 4. Guilty but mentally illverdict: Brown v. Commonwealth KY charade, a cloaked in a verdict
4. Rotten social background defense: No one with that upbringing could conform their behavior to the law. Big in the 60's and 70's. 1. some argue statistically more criminolgenic than psychosis 2. counter arguments: minority of poor people aren criminal so poverty should t
110 not be sufficient cause of the crime 5. Defining mentally ill 1. Someone who is insane is kind of like a child. 6. Effect of insanity acquittal 1. Majority: commitment is discretionary 2. Minority (MPC 4.08) commitment is automatic 3. Supreme Court view: Jones (U.S. 1983) Its o.k. for someone to spend more time in insane asylum than would have spent in prison (if D never rehabilitated ). 7. Diminished Capacity Defense Is simply a mitigating factor used to negate requisite mens rea (to get to vol. manslaughter) while insanity is a complete defense.
111 CRIM CHECKLIST Purposes for punishment: Deterrence (General/Specific) Rehabilitation Incapacitation Retribution Denunciation (Respect for the law) Culpability: Act + Intent + Result = Crime - Defenses ACTUS REUS Statute must describe the act clearly. Voluntary Act (no culpability if involuntary) Exceptions (Reflexive; Convulsive, Unconscious, Asleep, Hypnosis) Omission as Act Legal Duty to act when: Statute compels Contract Special Relationship Voluntary Assumption of Care Jones Woman took care of friend kid. Invol. Manslaughter. Was she legal s guardian? Possession as Act Awareness + Dominion/Control over controlled substance Constructive Possession Need not be in direct possession. Wheeler (Lady in Apt.; Toilet Flush) Guilty; Inference she was connected to heroin. Ireland (Guy wife kept Pot in trailer home) Knowledge not alone (nothing tied s him to the criminal act) Status Crime Being a certain way is criminal Homelessness/Drug addicts: Not Crimes b/c involuntary Public Drinking: IS A CRIME Is an act MENS REA Don punish t innocentcriminal behavior Common Law VAGUE General Intent Actor intends to commit conduct which has been made criminal (General awareness; easier to punish) Specific Intent With intent to do the act in a criminal way (More blameworthy; can be deterred) Peery Stripper by window. Statute vague; ct. interprets as willful.Here, behavior was just careless, so not guilty. Strict Liability No mens Rea needed because so bad. Certain defenses (e.g., Mistake of Fact) N/A. Essentially, these are manifest negligencestatutes MPC Purposefully Knowingly
112 Recklessly Negligently CAUSATION HOMICIDE OLD CL Murder Unlawful killing w/ malice aforethought (express or implied). Malice Aforethought? Intent to kill (express malice) Intent to cause SBH (implied malice) Reckless indiff. to unjustif. high risk to human life (abandoned/malignent heart) (implied) Intent to commit felony. (implied) First Degree Murder Malice Aforethought? Intent to kill (express malice) (Willful, premeditated, deliberate) Intent to commit felony. (implied) Premeditated/Deliberate (Specific intent to kill)?: Cool and dispassionate decision to kill. Planning? Motive? Manner? ANDERSON Test: Behavior record to V before crime Method of Killing Conduct prior to killing (planning) Cf. Perez: Clearheaded enough to get another knife (not heat of passion) Defenses: Was defendant: Intoxicated? (If yes, Voluntary Manslaughter) In the heat of Passion? Provoked? Under honest mistake of fact? Diminished Actuality? WHAT IS THIS? 1st degree Felony Murder. CL: Any murder that arose out of felony (even if not dangerous and death unforeseeable); Modern: dangerous felonies, foreseeable deaths (or both). Was there: Enumerated felony (in statute; most jx. = inherently dangerous felony)? Mens rea: intent to commit the underlying felony? All the elements of the underlying felony met? Did killing occur during the perpetration of the felony? NEW
113 Is there some causal connection b/t felony and murder? When did the felony end? Who did the killing? Who was killed? Proximate Cause theory: b/c felon had intent to commit dangerous felony, his mens rea for the dangerous felony can be tagged to any murder Agency Theory (must be an agent of the crime who murders - not cop or 3rd party); Merger Doctrine: Defenses: Can D prove: Not all elements of underlying felony met Felony was over (reached safe place) Killing not done by any co-felons (cf. proximate cause theory) Second Degree Murder All murders not in 1st degree. Need not establish Premeditation or deliberation (Unintentional) Must establish: Malice aforethought? If express intent to kill, then see 1st degree. If no, look to implied malice: Intent to cause Serious bodily harm? (I didn mean to kill him when I beat t him!) Extreme recklessness or Conscious disregard of a substantial risk of harm to human life? (Duh, I had no idea he die from drinking that!) d Voluntary Manslaughter Intent to kill + no Malice If following factors present 1st degree may be mitigated to Vol. Mans.: Heat of passion Unreasonable Mistake of Fact Voluntary Intoxication Imperfect self-defense Was there provocation and was it Legally adequate? (CL presented list of acts: e.g., witnessing act of adultery) Factually Adequate? Modern Approach Was D in fact provoked? Would reasonable have been provoked? Jury asked whether they would provoke a reasonable person. Was there cooling off time? Did D in fact cool off? Would reasonable person have cooled off? Involuntary Manslaughter No intent to Kill + no malice. Makes criminals out of people trying to do their best. Was the act negligent or reckless? (not grossly reckless) Was the omission of a duty to act negligent? See also misdemeanor manslaughter (public cries out for justice even though didn directly cause death) t
114 Feinberg Sterno: Criminally negligent to not be aware of the risk.
MPC DEATH PENALTY Requirements before sentencing to death: Bifurcated Trial Automatic Appeal Comparison of aggravating and mitigating factors Aggravating factors: limited by statute Mitigating factors: not limited by statute: jury must be allowed to look at any and all possible circumstances that might mitigate.
Mistake of Fact v. Mistake of Law CL cases are stupid. French Lace not French Lace is a mistake of fact (ct. gives her a break b/c says it is a mistake of law this is wrong). Mistake of fact can be a defense (reasonable mistake for general intent; unreasonable for specific intent crime) Just be able to identify that there is an issue of mistake; then, regurgitate the book rules (maybe s mention a case); then, come to a conclusion about this.